Where We Are Now: The U.S. Federal Regulatory Framework for Alternative Energy on the OCS

Abstract

Section 388 of the Energy Policy Act of 2005 (EPAct) amended the Outer Continental Shelf Lands Act (OCSLA) to grant the U.S. Department of the Interior (USDOI) discretionary authority to issue leases, easements, or rights-of-way for activities on the Outer Continental Shelf (OCS) that produce or support production, transportation, or transmission of energy from sources other than oil and gas, except for where activities are already otherwise authorized in other applicable law (e.g., the Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.), the Ocean Thermal Energy Conversion Act of 1980 (42 U.S.C. 9101 et seq.)) [1]. This authority was delegated to the Minerals Management Service (MMS), which was charged with developing regulations intended to encourage orderly, safe, and environmentally responsible development of alternative energy resources and alternate use of facilities on the OCS. MMS published its Alternative Energy/Alternate Use proposed rule in the Federal Register in July 2008 for public comment and held a series of public workshops to discuss the proposed regulations. The final regulations were submitted to the U.S. Office of Management and Budget (USOMB) on November 3, 2008 for clearance. In advance of final regulations, MMS announced an interim policy in November 2007 to authorize offshore data collection and technology testing activities in Federal waters. This measure was designed to allow developers to jumpstart data collection activities in support of potential future alternative energy development once regulations are in place. MMS has worked very closely with its State and Federal counterparts in implementing the interim policy, which has progressed most expeditiously on the Atlantic Coast. The interim policy is in effect until the MMS promulgates final rules. Beyond the MMS leasing process, several other Federal entities are involved in the permitting and licensing of alternative energy in the offshore environment, including the U.S. Army Corps of Engineers (USACE), the U.S. Coast Guard (USCG), and the Federal Aviation Administration (USFAA), among others. This paper will discuss the history of MMS’ program and policy development for offshore alternative energy activities; the steps taken to arrive at final regulations; as well as note the other regulatory bodies involved in the authorization of these activities in U.S. Federal waters.