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Document Type

Case Note

Abstract

Today, nearly everyone recognizes the need for the United States to diversify its energy resources. Wind energy on the Atlantic and Pacific coasts alone could generate as much as the equivalent of the current U.S. generating capacity. Despite this potential, not one offshore wind project exists in the United States; I argue that this is largely due to the unwieldy regulatory scheme that developers must navigate. The recent decision, Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, (Alliance) is a prime example of how the lack of cohesiveness between the state and federal governments impede the development of this much needed energy resource. In Alliance, the Massachusetts Supreme Judicial Court considered a citizen group’s appeal of a state agency’s decision regarding the construction of underground and undersea electricity transmission cables integral to the first proposed offshore wind farm project in the United States. The agency decided that in order to construct the electricity transmission cables the project must first obtain all other necessary federal and state authorization. Against the citizen group’s plea, the court upheld the agency’s decision. Initially, this Note provides an overview of the permitting process for Cape Wind, including other litigation that came about during the review process. Then there is a thorough discussion of the procedural history and posture of this case. This is followed by a discussion that asserts that, given the jurisdictional uniqueness of this case, both the Board and the court acted reasonably. Ultimately, this Note concludes that the federal government must create a comprehensive permitting and regulatory framework in order to facilitate the development of future competitive offshore wind power.

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