The United States has vast offshore wind resources—nearly double the total electricity consumption of the country—ideally located close to the largest population centers. This abundance has remained stubbornly untapped for over a decade, without a single commercial scale wind project built in federal waters as of early 2021.
In contrast to obstruction by the Trump administration, President Biden, in his first days in office, singled out offshore wind development as one of his priorities for tackling the climate crisis. As a result, the United States may soon see an offshore wind rush.
Onshore, the United States is a world leader in wind energy, but that development has come at the price of heavy waste of the resource. A common law rule of capture, like the one applied in the early days of oil and gas development, has fostered competitive and protectionist practices. Individual wind developers have an incentive to maximize energy recovery within their own wind farms, but they have no incentive to maximize recovery of the entire resource.
There is even more reason than in the oil and gas context to maximize recovery of the entire U.S. offshore wind resource. While maximizing an oil and gas field simply contributes more greenhouse-gas-producing product, maximizing carbon-free energy production benefits the U.S. public, as well as the world, by helping mitigate climate change. Furthermore, offshore wind in federal waters is an asset collectively owned by all U.S. citizens; maximizing production can generate maximum payments to the public.
As with oil and gas development, regulation is required to prevent waste and force consideration of the correlative rights of other developers in a common pool. Uniformity of ownership by the federal government should facilitate consistent, cooperative wind development, which is something that is not possible on land because of the competing priorities of different owners. Lessons learned from common law waste and state oil and gas waste statutes, as well as the federal regulations on the topic, can inform the promulgation of regulations that will best facilitate the development of offshore wind. In this regard, two criteria should guide offshore wind development—maximizing the quantity of recoverable resource and avoiding the construction of unnecessary infrastructure to harvest it.
This Article is the first to address the unique qualities of wind energy development and comprehensively combine the science with the law. The federal statute that regulates offshore oil and gas waste is the very vehicle Congress chose for offshore wind energy development. Consequently, this Article provides a foundation, first, by exploring the history of waste law in general and then waste in the context of oil and gas. A thoughtful application of the lessons learned in those contexts can help transform this federal offshore wind rush into a model for efficient and climate-friendly wind development worldwide.
* University of Denver Sturm College of Law. The Author is deeply grateful to Joshua Kaplowitz, Senior Counsel—U.S. Offshore Wind—GE Renewable Energy, formerly with U.S. Department of the Interior Office of the Solicitor, and Jacqueline L. Weaver, Professor Emeritus for University of Houston Law Center for their exhaustive feedback and excellent suggestions. In addition, she would like to extend thanks to the members of the Section on Natural Resources and Energy Law and the Section on Environmental Law who participated and provided feedback on an earlier draft of this piece for the “New Scholarship” workshop at the American Association of Law School’s (AALS) 2021 Virtual Annual Meeting—The Power of Words on January 7, 2021, especially to Victor B. Flatt, Dwight Olds Professor of Law and Co-Director of the Environment, Energy, & Natural Resources Center at the University of Houston Law Center; Tracy Hester, Instructional Associate Professor of Law at the University of Houston Law Center; Rebecca Purdom, Professor of Practice and Executive Director for Graduate and Online Programs at Emory University School of Law; and Gina Warren, Professor of Law, George Butler Research Professor, UH Energy Fellow, and Co-Director of the Environment, Energy, & Natural Resources Center at University of Houston Law Center for their individualized feedback as well as to Steve C. Gold, Professor of Law and Judge Raymond J. Dearie Scholar at Rutgers Law School for organizing the event. She also appreciated the assistance of Karina Condra, Reference Librarian and Assistant Professor in University Libraries at University of Denver and Michelle Penn, Faculty Services Librarian and Assistant Professor in University Libraries at University of Denver. Last, but certainly not least, she would like to express her deep appreciation to my research assistants Tod Duncan, Alice Hansen, Alejandro Armelles Bello, Alex Thomas, and Travis Murphy for their invaluable help in finding sources and cleaning up citations.