Confusion Grows Over Offshore Wind Controls

Published January 28, 2025

Bringing offshore wind under control will be a complex process under administrative law, which few people know much about. As a result there is likely to be a lot of confusion and misunderstanding. Some of this will be seriously funny.

A fine example, actually several, occurred during the Senate confirmation hearing for Governor Doug Burgum to be Secretary of Interior. The vehicle for this confusion is an exchange between Maine’s Senator Angus King and Burgum. Interior is the lead agency that leases offshore wind sites and oversees their development.

King basically asked Burgum for a commitment to carry forward the Department of the Interior’s offshore wind leases in the Gulf of Maine and offshore wind projects that are already in progress.

Burgum replied: “I’m not familiar with every project that the Interior has under way, but I’ll certainly be taking a look at all of those and if they make sense and they’re already in law, then they’ll continue.”

This sounds like Burgum agrees with King but given President Trump’s clearly stated policy of stopping offshore wind development it likely is not. It all depends on what “already in law” means.

Specifically “already in law” probably means the project already has all its numerous required federal permits and approvals. There are a few such projects, which are already under construction and they would be very difficult to stop at this stage. The Government would have to forcibly buy them out.

Meanwhile almost all of the forty or so offshore wind projects are not at this “already in law” stage. Many projects are just at the beginning of the approval process including the three off of Maine. To my knowledge two of those projects do not even have names much less required approvals.

If this interpretation of “already in law” is correct then what Burgum really said to King was “Not a chance, Senator.” That will be truly funny especially since the offshore wind press reported Burgum as agreeing with King.

The far deeper confusion is people thinking that the future of offshore wind is up to Burgum. While Interior has the lead and owns several key approvals a bunch of other essential approvals lie with other agencies. In some cases whole groups of agencies have to agree to an approval.

A big case in point is the central issue of wind development killing whales. The lead agency in whale protection is NOAA Fisheries which is in the Department of Commerce not Interior. I have yet to see the Secretary of Commerce even mentioned in discussions of offshore wind policy.

The whale protection authority is widely shared. NOAA’s authority to protect all whales is under the Marine Mammal Protection Act. In particular they must approve the so-called harassment of whales caused by various phases of offshore wind development. I say so-called because what is approved is actual injury which is way beyond harassment.

But NOAA Fisheries also shares the authority to protect endangered whales from offshore wind under the Endangered Species Act (ESA). Here the mechanism of approval is called a Biological Opinion. It must say that the adverse environmental impacts do not violate the ESA.

NOAA Fisheries has the lead but six different federal agencies have to sign off on a Biological Opinion that approves an offshore wind project. Two are in Interior, one each in Commerce, Defense and Transportation, plus EPA. Any one of these agencies can kill the approval.

No doubt there are other required approvals that I am not aware of. Some of these agencies may even be hostile to offshore wind development.

For example I have heard that the Coast Guard with good reason views offshore wind as a threat to navigation, as well as to search and rescue. The Navy and Air Force both have legitimate concerns about the adverse impact on defense radar systems and maybe a lot more.

The Biden Administration was able to keep all these agencies in line when it came to approving a wave of offshore wind projects. Trump may only need to release his agencies to do their proper job and the approvals will be greatly diminished. Time will tell.

In the meantime enjoy the confusion as it too will help end the wind mistake. Stay tuned to CFACT for ongoing coverage of this historic process.

First published at CFACT.