From the New York Times’ Greenwire blog (4/11):
Congress should create an ocean zoning system to protect marine resources from expanded offshore energy development, according to Duke University researchers.
The Science article, “Legal Bedrock for Rebuilding America’s Ocean Ecosystems,” proposes the extension of the “public trust” doctrine to coastal waters for the purpose of regulating offshore development in the 3.6 million million nautical square miles of the U.S. Exclusive Economic Zone (EEZ) (which extends from the boundaries of states’ waters to 200 nautical miles offshore).
The article states
A federal public trust doctrine, if formally extended from state waters to the outer edges of the EEZ, would identify federal agencies as having responsibility for marine resources as trustees of the U.S. ocean public trust and U.S. citizens [current and future] as the sole beneficiaries.
The authors point out that more than 20 federal agencies currently regulate the area without any “systematic effort to coordinate their actions for the public good.” While the article notes that many analysts assume that the public trust doctrine extends to the EEZ, its authors posit that a formal declaration, either by executive order, Congressional mandate (legislation), or federal judicial interpretation, would definitively establish the doctrine in the EEZ.
The Greenwire article notes that New York is “in the process of drafting … comprehensive plans for managing state waters.” Indeed, a draft plan, prepared by the Department of State and other interested agencies comprising the New York Ocean and Great Lakes Ecosystem Conservation Council, was submitted April 6 to Governor Paterson and the state legislature. With respect to energy development, the report, “Our Waters, Our Communities, Our Future,” indicates:
Energy: Developing Ecosystem Approaches to Meet Critical Energy Needs
Achieve renewable, sustainable, and efficient energy production and transmission in a manner that is consistent with place‐based ecosystem goals for coastal areas, promotes community well‐being, is adaptive, and engages stakeholders.
No current issue may be more urgent and overarching than increasing energy demands and the search for new, alternative sources of energy. New York’s economic health is closely tied to its ability to meet its energy needs; the State is the fourth largest energy user in the U.S., but only 13% of the total primary energy requirements are met from in‐State resources. Governor Paterson has committed to the dual goals of reducing electric energy demand 15% by 2015 and having renewable sources provide 30% of the State’s electrical power by 2015 (known as “45 by 15”).
At the same time that demand for more renewable energy sources is growing, New York’s existing generation facilities are aging. These two factors will increase the need to site new facilities and will stimulate increased public scrutiny on the siting pro[c]ess. Many types of energy facilities could capitalize on New York’s abundant renewable resources, such as turbines that capture wind power or anaerobic digesters that convert manure to electricity. Each has the potential to impact land and offshore uses and natural resources in New York’s ocean and coasts, while also having the potential to deliver more localized sources of power and enhance economic opportunities.
The Council agencies should work in partnership with New York’s Energy Planning Board, the Renewable Energy Task Force and a broad diversity of stakeholders to encourage energy conservation and development program that will meet community energy needs, align with the local and regional economic development, conservation, and land use plans, and protect ecosystem integrity. [p.45]
Meanwhile, the Department of the Interior and Federal Energy Regulatory Commission released April 9 their memorandum of understanding regarding the regulation of offshore energy projects,
in order to develop a cohesive, streamlined process that would help accelerate the development of wind, solar, and hydrokinetic (i.e., wave, tidal and ocean current) energy projects.
See OREC summary here.