Cindy Lowry


For close to four years, the Cape Wind offshore wind project proposal (see Spring, 2005 EIJ) has been making its tortured way through the Army Corps of Engineers permitting process under the Rivers and Harbors Act of 1899. The proposal has become the unfortunate poster child for offshore wind energy, a good idea being promoted in the wrong way and the wrong place by an aggressive developer.

Cindy Lowry, photo courtesy Cindy Lowry Cindy Lowry

The national policy implications of this fight for Nantucket Sound are far-reaching, and while the debate over the harms and benefits of the proposal will continue for some time, the most troubling aspect of the Corps’ review is the federal government’s failure to answer the most critical question: Will the United States allow a private developer to take control of a vast area of the public trust lands and waters of the ocean on the basis of nothing more than a navigation permit under an 1899 law?

Ocean areas beyond three miles are owned and controlled by the federal government. One of the most enduring principles of our system of government is that natural resources in the ocean are managed on behalf of the general public. Specific authorization must be granted to a private party to use such an area for private gain. That permission requires an act of Congress to create the power for an agency to approve such use. Then the agency must award a right to the private party, usually through a competitive bidding process and with requirements for compensation to the taxpayers and environmental review tailored to the proposed use.

In the case of offshore wind projects, the US Commission on Ocean Policy has stated that the Rivers and Harbors Act does not provide this authority. The Commission also has stated that there is no adequate procedure to review offshore wind energy proposals or grant private rights that impinge upon the public trust. A recent court decision dealing with one aspect of the Cape Wind project supports that conclusion.

Despite this profound defect in federal law, the Corps of Engineers continues to march forward with the Cape Wind application. Other proposed offshore wind projects are already under consideration along the East Coast, and the West Coast may not be far behind. The developers assert that they will build their project if they receive the Section 10 permit, even in the absence of permission to turn the public trust into a private asset. This amounts to an illegal raid on the public trust.

The Bush administration is using this project to usher in an unprecedented give-away of federal lands and waters. If Bush’s Army Corps slips this permit through under the mantle of “green energy,” then our oceans would be opened up to a wide range of industrial development under the same inadequate permit mechanism.

The future of alternative energy is better served by calling upon the Bush administration to look at the big picture first. The Corps’ draft EIS on Cape Wind has now been subjected to devastating criticism precisely because it fails to follow this approach. As a result, it is time for the federal government to explain how the public trust will be defended from not only the Cape Wind proposal, but also from other potential uses of Section 10 that would open up the oceans to private development. Imagine such projects, whether offshore wind, large-scale aquaculture, liquefied natural gas facilities, or floating casinos located in federal waters along our nation’s coastlines!

Wind energy deserves prompt and detailed attention, but not at the expense of the public trust or through an ad hoc process that amounts to another Bush administration “cop-out” on renewable energy.

Cindy Lowry is the director of Oceans Public Trust Initiative, an EII project dedicated to protecting the public trust. She has been an environmental advocate for 20 years and was the director of Greenpeace in Alaska for 10 years.

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