Transmission Impossible: The Case for a Nationwide Permit for Offshore Wind Transmission Lines

The United States is drastically behind the rest of the world when it comes to offshore wind energy. With only one offshore wind farm in operation, developers have cited regulatory burdens and excessive litigation as two of the primary constraints on the industry. Currently, these developers must go through several governmental approval processes, including working with the Bureau of Ocean Energy Management, the Army Corps of Engineers, and state governments. While these lengthy processes rightly offer plenty of opportunities for people to work out legitimate concerns about the projects, some offshore wind
opponents have used the process to try to stall and ultimately kill projects. To help remedy some of that uncertainty plaguing the industry, this Note proposes a new nationwide permit, issued by the Army Corps of Engineers, that would be used exclusively to authorize offshore wind transmission lines. These nationwide permits would drastically speed up approval times, as developers
could forgo trying to get their projects individually approved and could instead get their project to fit under these pre-approved permits. Traditionally, the Army Corps of Engineers issues nationwide permits pursuant to its authority under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. However, as seen in Sierra Club v. Army Corps of Engineers, projects that use nationwide permits can still be tied up in legal challenges for years when their permits are issued pursuant to Section 404 of the Clean Water Act. Therefore, this new nationwide permit would only authorize construction
activities that do not constitute a “discharge of dredged materials,” which would trigger the need for a Section 404 permit. This proposed permit would only allow construction projects with minimal adverse environmental effects and would help with the current needless delay facing offshore wind projects. By streamlining this part of the process, offshore wind developers would have greater certainty and greater ability to attract capital, and the United States would continue to build up an industry that is critical in our fight against climate change.