Houston Offshore Wind Energy Projects: Legal Guidance By Maritime Attorneys

 Houston Offshore Wind Energy Projects: Legal Guidance By Maritime Attorneys - On 8 December 2022, the Department of Climate Change, Energy, Environment and Water (DCCEEW) issued two guidance documents on the feasibility license application process as well as the form to be filled by feasibility license applicants.

The Administrative Feasibility Guidelines are intended to assist prospective licensees, and other interested parties, to understand the requirements and process for licensing under

Houston Offshore Wind Energy Projects: Legal Guidance By Maritime Attorneys

(Ex) (OEI Regulation). It covers many of the details already set out in the OEI Act and the OEI Regulations and provides some important new information.

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Of particular relevance to proponents is guidance on what the Offshore Infrastructure Registrar will consider in assessing competing feasibility license applications.

The Registrar's Form Guide has been prepared to assist applicants and licensees in making valid applications and notifications to the Registrar under the OEI Act and OEI Regulations.

It confirms the mandatory procedural requirements for a valid application, and for processing to begin. This includes matters such as applications submitted in an approved manner and form and within any prescribed time period; legally executed; fees paid; and all required documents are included at the time of submission (including the suitability disclosure form

The Registrar's Form Guide also sets out in detail the requirements for the content of the application, including:

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The Climate Change (Consequential Amendment) Act 2022 (Cth) amends the OEI Act to require the Minister for Climate Change and Energy to take into account Australia's greenhouse gas emission reduction targets under the Paris Agreement when creating, changing or canceling areas declared for offshore wind development under

We have yet to see how this mandatory consideration will impact future declarations, but expect it to facilitate such declarations as a way to continue Australia's transition to renewable generation.

(Eg). This Bill, which is subject to investigation by the Senate Environment and Communications Legislation committee, was passed without amendment and will come into force on December 1, 2022. It has amended

Our energy practice has a good understanding of the developing offshore wind market in Australia, and we are currently advising a number of potential proponents in the sector.

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Globally and within Australia, we have been involved with offshore wind since the beginning. We have advised on all aspects of the development, financing, operation, sale and purchase of over forty-five offshore wind projects across the UK, Europe, America and Asia and advised on the creation of a regulatory framework for offshore wind in the UK.

This unique offering has allowed us to gain a reputation for understanding the complex issues specific to offshore wind, allowing us to use this experience and knowledge to help our clients succeed in new markets.

We are seeing a nationwide increase in legislative activity to eliminate facility fee charges, despite increased demand for care coordination and electronic medical record integration.

Although commonly regarded as perpetrators of crime, companies, organizations and government entities are often victims of criminal acts. On May 17, 2023, the United States District Court for the District of Massachusetts dismissed the plaintiffs' challenge to the Vineyard Wind Project— the United States' first major offshore wind project. The plaintiff, a nearby resident, challenged the Bureau of Ocean Energy Management's ("BOEM") final Environmental Impact Statement and the National Marine Fisheries Service's ("NMFS") Biological Opinion related to the offshore wind energy project, arguing that the agency's assessment violated the National Environmental Policy Act. (“NEPA”) and the Endangered Species Act (“ESA”). The plaintiffs' arguments focused mostly on the project's impact on an endangered species, the North Atlantic right whale.

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BOEM approved the Construction and Operations Plan for the Vineyard Wind Project in July 2021, about 12 years after BOEM began evaluating the site for wind energy development. Various environmental impact statements and ESA consultations have taken place alongside the project. As part of its approval, the agency required the use of various mitigation strategies during the construction and operational stages to limit impacts to North Atlantic right whales.

The plaintiffs argued that BOEM and NMFS relied on outdated studies and failed to consider the possible impacts the project might have. The court rejected this claim, deferring to the agency's judgment about reliable information and data. The court also found that the agency had looked closely at the project's potential impact on species.

, 1:21-cv-11172-IT). The plaintiffs in this case also challenge the adequacy of the agency's assessments under NEPA and ESA, as well as under the Outer Continental Shelf Act, the Clean Water Act and the Marine Mammal Protection Act. For each of these statutory claims, the key issue is whether the record shows that the agency adequately considered environmental consequences when approving the project.

The development of this court occurred when the Vineyard Wind Project began construction. If the court vacates the agency's approval, the first major US offshore wind project could face serious delays.

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On May 19, 2021, the U.S. Environmental Protection Agency (“EPA”) issued a final Clean Air Act Offshore Continental Shelf air permit to Vineyard Wind 1, LLC (“Vineyard Wind”), thereby clearing a major permitting hurdle before beginning construction of the 800 megawatt wind farm that will be the offshore wind project the country's first major coastline.

The project represents an important step for the country to meet the Biden administration's goal of generating 30 gigawatts of energy from offshore wind by 2030. While Europe has a network of more than 5,300 offshore wind turbines, the United States currently has only seven, and President Biden wants catch up quickly. Vineyard Wind is the first of seven offshore continental shelf (“OCS”) wind farms that EPA Region 1 is evaluating for a combination of construction and operating permits.

Offshore Wind Projects

Given the Biden administration's goal of fostering the rapid development of offshore wind development, it may come as a surprise that the EPA has determined that Vineyard Wind is a major source of air pollution and thus subject to the Prevention of Significant Impairment (“JPA”) and the Clean Air Act's stringent Noattainment New Source Review. (“NNSR”) permitting requirements. In determining a project's potential emissions, EPA does not limit itself to calculating emissions from physical engines on wind turbines (such as backup generators). This release alone will not make the project a primary resource. In contrast, pursuant to OCS-specific provisions in the Clean Air Act, EPA also calculates certain emissions from vessels used for construction and operations, including when such vessels are en route to or from the turbine construction area and within 25 miles of the project area.

Accordingly, having considered the project as a major source of air pollution, the permit imposes strict emission limits for the equipment and vessels used to build and operate the wind farm. Additionally, after triggering the NNSR, Vineyard Wind must obtain costly emission offsets for nitrogen oxides (“NO

Developers and investors in OCS wind projects should take note of Vineyard Wind's air permit. The EPA permit confirms that, in addition to the need to navigate permitting challenges with more than a dozen other agencies, the OCS wind project will also be subject to significant costs and uncertainties permitted by the PSD and NNSR.

Under the Clean Air Act, no facility with the potential to emit certain threshold levels of certain air pollutants (so-called "major sources") can be built without a permit. The proposed source must obtain a PSD permit if located in an area that meets air quality standards, or an NNSR permit if located in an area that does not meet those standards. PSD permits require resources to use “best available control technology” (“BACT”), and NNSR permits require a more stringent “lowest achievable emission rate” (“LAER”).

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In the 1990 amendments to the Clean Air Act, Congress extended the applicability of PSD and NNSR requirements beyond major land-based stationary sources. In creating Section 328, Congress granted EPA authority to regulate OCS sources "located

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