Transcript: Environmental Review of Offshore Wind: Policy Changes and Challenges
Speaker A: You’re listening to Environmentally Speaking, a weekly podcast diving into legal matters surrounding the environment, public utilities, energy, zoning, and permitting laws in Rhode Island and the surrounding areas with your host, Marissa Desoto. Hello, everybody. Welcome back to Environmentally Speaking.
For those of you who had a little notification reminder, you’re probably surprised that it’s popped up on your phone today. I didn’t know that that was a thing. So thank you for that.
And hi, good to see you. I’m Marissa Desautel. This is our podcast.
Environmentally Speaking, we’ve been on a bit of a break. I’ll let you explain why. Yes.
It is mostly my fault, but I’m going to blame my son too. So fault. Yeah.
Like that. Yep. We’re going to slide it onto him before he can talk.
But yeah, I was out on mat leave. Oh, good for you. Congratulations.
Thank you. But you missed the dynamic world of environmental law so much that we just had to record again. Yeah.
Is that right? Yes. That and the sound of our voices. It was pretty tight.
Yep. What are we talking about? And we’ve been gone for, what, six months? Yeah. Yeah.
So a lot has happened. A ton has happened. Yeah.
There has been massive, massive changes in government as a full sentence right there, and then specifically environmental agencies, policies. So we’re going to ease back in. We’re not going to talk about all of them in one go.
This would be like a three-hour episode. Yeah. And that wouldn’t be enough time to cover, I think, everything that’s been going on.
Absolutely. All right. So let’s start.
So I’m just going to throw out a topic here. It’s something that we’ve talked about a lot previously on previous episodes, and it’s still a relevant topic, especially so because the federal administration changed its policy on what? Offshore wind. Oh, what a surprise.
I know. It was a surprise because the Biden administration had been so forceful and aggressive, in my opinion, about pushing these projects forward and getting them approved, come hell or high water, no pun intended. And now that the Trump administration is in, the policy has been reversed.
And if you haven’t been following it, the president issued, among many other executive orders, indicating that a six-month moratorium or a pause would be issued, starting immediately for the next six months, like I said, and no new leases will be signed, no new permits will be granted, ostensibly no reviews are going to be undertaken, which makes sense considering all the work that the Department of Government Efficiency is doing with cutting down the federal workforce, the review of these offshore wind project elements is time consuming and takes a lot of resources. So I can see how those two timing factors get together. So I think my first question is, now that there’s been this sudden and immediate pause, my first question is, is it possible to just have a blanket statement of we’re pausing this and then the following steps of maybe it’s review, maybe it’s restructure? We don’t, I mean, I’m not particularly clear as to what the next steps are other than it’s paused.
Yeah. Good question. Like with any executive order, we’re seeing a lot of drama right now between the executive branch and the judiciary going head to head, sort of telling each other what the bounds of their respective jurisdiction is.
So in terms of legally speaking, the executive order on offshore wind, what happens next, it could be subject to review, court review. And I’ve speculated on that with several colleagues and other folks in the industry. Even if someone were to appeal that executive order, the amount of time it takes to get through the appeal process on the federal level, you would be, the thing about offshore wind right now is timing.
Everyone besides me wants these projects to be permitted and go forward quickly. And there’s been federal money and federal incentives and all kinds of handholding that has occurred at the federal level with these developers. So even if one of them were to file an appeal of the executive order that is placing a moratorium on these projects, that would not be resolved until well after the moratorium is over.
So it would be a waste of resources and money. I think the two things that I was a bit surprised by were the speed of which this executive order just took effect. I think we’re mostly used to, you know, there’s that old joke of like government takes forever.
It’s such a long, arduous process. So to see that just kind of move, you know, it was shocking. I could see just the fact that that can happen felt a little alarming.
But then following that up, I’m just wondering how long it can stay in limbo before we hear a next step. Are there rules around that? No, there are not. And my best guess is that it’s going to take not a long time because we’re seeing how quickly things are moving, but it’s going to take some time now that the president’s cabinet has been, the majority, I believe, has been sworn in.
Once that process is in place, then these folks have the task of reviewing what exactly has been going on for the past four years and how can that process be made better or can it? And if it can’t, then do we scrap it? Do we try to figure out an alternative? There’s floating offshore wind projects that seem to be popping up in the news. I’m seeing a bit more of instead of a fixed infrastructure in the ocean floor, they have floating turbines. So just a thought off the top of my head there, but the federal government is going to have to figure out what their policy is.
And they’ve given themselves six months, which also tells me that they want to figure it out fairly quickly. Six months is not a long time. No, no.
And do you think the fact that six months is not a long time, do you look at that as a positive thing or a cause for concern? Go ahead. I was going to say, or is it just an arbitrary thing of, we have six months and it doesn’t necessarily mean anything attached to that? Yeah. Good question.
I hate to think that the time period is arbitrary. I’d like to think that they selected six months because there’s some kind of framework for reviewing existing policy, reviewing existing regulations, and making administrative changes to the way that permits are being processed. That was a very convoluted answer.
I’ll give you a second here. Six months is not enough time for the federal government to rewrite their regulations. And it certainly wouldn’t give Congress enough time to change existing law or enact new law.
So to me, the six month period will only allow for agencies themselves to change their policy. And we know from administrative law that policies are not, they don’t have the full force and effect of law. So they could be written, sometimes they’re not written, but generally they’re not enforceable because they haven’t gone through the rule promulgation process.
The good news about policy is that you can change it. The bad news about policy is that you can change it. So in this case, with the six month timeframe, I think they’re going to change the policy.
I don’t think there’s going to be any changes to federal law. And the regulations in place currently for offshore wind don’t have to be changed. In my opinion, the federal government just needs to do its job.
And it hasn’t been doing its job for the past four years. In my experience dealing with offshore wind developers, these projects are just being shoved down America’s throat without appropriate environmental baseline information, without appropriate scientific study. We’re seeing whales wash up on shore and hearing that it’s not related to offshore wind.
But OK, oh, I believe that one. So that needs to be figured out. So there is nothing needs to be changed drastically, but the government needs to change its policy and give these projects a thorough review or scrap the program altogether.
I have, and I’ll be candid, I have not followed up on my next question, so I haven’t done any research. Do we know if they’ve put out a criteria in which they’re going to be using for review? No. No, and I’m yeah, that’s very interesting.
Yep, I’m I’m interested to hear what what’s coming out of the federal agencies for this topic and the executive order on offshore wind was one of the first orders that the president signed. So it was top of mind, top of agenda, I would think. And I don’t know if agencies are already working on it.
I mean, it could have been top of mind, top of agenda, or it could have been a point of less resistance compared to other projects. How that works, I don’t know. But I’m wondering if he’s weighing his plate in figuring out what’s a what’s a quick move first.
Yeah, because you’re that’s a good point, because you’re these projects are still we’re talking millions and millions of dollars at stake, which is huge. But then you look at what federal government is doing in terms of auditing agencies. And now we’re talking trillions, trillions of dollars.
So yeah, offshore wind is a smaller, yeah, that apple. Yeah, absolutely. Yeah, I’m just I’m hopeful that we’ll see an agenda of, of sort of goals, plans for it.
I mean, I know that there’s sort of been the the pieces saying that we want efficiency, we want to make sure that it has a benefit. We want it to all be for a positive impact. But zooming way out, the words efficiency and positivity have different effects on different folks.
So I’m eager to see what those tangible pieces are. And you know, maybe that’s maybe that’s mediator Clarice coming out when we talk about these things. Yeah, good point.
mediating is definitely not going to happen. Yeah, but but the to have a clear path forward would be lovely. Again, in my experience, and I’ve talked to you enough about it that hopefully you kind of understand the the principle that it’s just happening too fast.
These projects, they need to be they need to be vetted, we need to see what’s in our ocean and what we’re destroying, before we destroy it, and make the decision about whether we want to destroy it. So that’s my, that’s where I get fired up. No, I completely agree.
And I think what I’m what I’m saying is, I want to make sure that, or I would love to know that in these reviews, that’s a piece of concern and consideration. Yeah, because efficiency and positivity to an environmentalist does mean taking your time doing those studies doing that work to to understand and appreciate the environment that you’re going to be going in and altering versus efficiency and positivity to, you know, a businessman or somebody who’s at a wind farm is how fast can we get this in? How cheap can I get the contract for? How many more can I make? So, you know, having that sort of definition in terms of action items is going to be helpful. And I hope that we get it.
Okay, so here’s, here’s the crux of this particular issue in America, in my opinion, that something you just said, environmentalists want things to slow down and be reviewed appropriately and assessed appropriately. Yeah, I think I meant you and I. Yes. The quote unquote environmentalists are, I don’t know where the hell they all went.
And nobody is is talking about the the detriments from these projects. If you’re a true environmentalist, you’re horrified by what’s going on. And if you’re not horrified, it’s maybe because you just don’t know what what the inner workings are with these projects.
Things are not being studied. You know, the fishing industry is upset, of course, because it’s their livelihood. But they’re also upset because they care.
And, and I care. And if you if you care about the planet, and you care about the environment, then you you don’t want these projects to be the project applicant applies in February of one year, and they’re they’re done by the end of, you know, the middle of the next year. And that’s unheard of.
I mean, the NEPA process takes years. So I think if you’re really an environmentalist, you are you’re on board with the executive order. I am I couldn’t be happier about it.
I think the effects are something that’s a positive. I’m like I said, I’m worried about the intent. And I appreciate the fact that you pulled out that piece of the difference in environmentalists because I think it’s funny when I say that I do think of you I’m like, Oh, okay, these are the values.
This is the alignment, but that’s not necessarily the temperature everywhere. Sure. And that’s and that’s politics.
I guess I’m just I’m excited about what the executive order says. Yeah, I see that playing out with my clients and playing out in Rhode Island with the state review process. Oh, talk about that.
How does that connect? I mean, it’s a good question. The second part of the executive order that I I failed to mention is that the the government is saying we are also going to be looking at projects that have already been approved will be conducting some kind of internal audit of the projects. I don’t know what that means.
If if the federal government plans to revoke an approval or somehow otherwise break the terms of these lease contracts that they’ve given out. I don’t know. But for Rhode Island, I can tell you that there is one project that is currently in the pipeline.
And I won’t go into the dirty details here, but it appears to still be a viable project. And I’m hearing that. With the Coastal Resources Management Council, there is a push to try to get the the federal consistency review done at the state level.
And it appears that if that were to be approved at the state level, then the process as it goes to the federal level under the old administration, the federal government would have rubber stamped an approval and and the project would go forward. Now, you don’t have that support at the federal level. So I’d be curious to see what what happens with the project after it leaves Rhode Island.
But a short answer is it it the executive order doesn’t prevent existing projects from proceeding with the review process. It just means that no new projects are going to be going forward and they’re going to be reviewing existing approvals internally. Yeah.
So there is a there’s a look back kind of element to this. Yep. For sure.
Which I think is unusual. If that’s not something that I see terribly. It is very unusual because once the government issues an approval or a permit and you as a business person move forward in reliance upon that approval and then that approval is taken away by revocation.
What do you think about the damage that that causes? You’re in the middle of building a wind farm and the government says you got to stop. I don’t know that that’s going to happen under the Administrative Procedures Act. Revocation of a permit allows or requires that the permit holder can file an appeal of that decision.
The appeal doesn’t stay the revocation, but nothing prevents a permit holder from also going to court and trying to get a writ of mandamus or injunctive relief declaratory judgment to say we can go forward with this project. But it’s not easy to revoke a permit. No, because I mean on several I could understand the kind of intent behind that being the idea of somebody now has reliance on this.
It does take on sort of a contractual element. There is harm both in terms of damage like in terms of financial investments in it. And also like you had hinted at, what happens to those if there is a situation of like a half built wind farm or a half done project? Does it stay in limbo? Is that sort of creating more waste in between? Especially because most of these projects don’t have a decommissioning plan.
So if they are dead in the water, these puns are killing me today. If they are dead in the water, then the developer is not obligated to remove anything. They’re not obligated to do anything.
You are fishing for a laugh today. Oh, dear God. All right, I gotta go.
I think that’s enough on this topic, actually. That’s a good breaking point. I could like keep on going, but I think you get the point.
Well, you know, it’s so good to be back. It really is. Yeah.
Who knows what we’re going to talk about next week? Will there be a next week? There should be a next week. I’m trying to think of a fish pun. I don’t think I have any.
That’s fine. Let’s just move on. Yeah, it’s fine.
We’re going to try to do a more set schedule now that you’re back from maternity leave, hopefully weekly. And obviously our older episodes are still available on the website and YouTube and your various podcast outlets. Yeah.
And if you have something that you want us to talk about, if you’ve been wondering why we haven’t covered something and what the heck this break was for, email us. You can email Marissa at… Marissa at desautelbrowning.com. Thanks, everybody. Bye.
Thank you for listening to this episode of Environmentally Speaking. If you’re in need of an environmental attorney, we are here to help. Call us at 401-477-0023 or visit our website at desautelbrowning.com.
