Takings Implications of Offshore Wind Energy Development

The successful installation of the Block Island Wind Farm in 2016 and its continued operation have encouraged investments in offshore wind projects in federal waters along the Atlantic seaboard. These proposed projects raise questions about their impacts on the environment and to other users and may face legal challenges.

Many of these projects are proposed in waters over 3 miles from the shore―potentially impacting fishing grounds and marine mammal migration routes―and will require the installation of power cables in state waters to connect to the mainland power grid.

Developers will need to address these considerations to gain ultimately state and federal government approvals in order to obtain a lease and the appropriate permits. And these governments could be held accountable to parties who are injured by these projects.

The potential for legal challenges to offshore wind projects by coastal property owners was the focus of a recent study by Jourdan Thompson, a Rhode Island Sea Grant Legal Fellow, under the guidance of Read Porter, senior staff attorney with the Rhode Island Sea Grant Legal Program.

Block Island Wind Farm ©John Supancic

Specifically, they evaluated the potential for takings liability associated with government development of wind turbine projects in offshore areas – that is, cases were property owners are deprived either physical access to their property, or their property value is harmed in any way.

For example, “a physical taking could occur with offshore wind turbines as a result of bringing power to shore,” according to the study. This means that a power cable that connects the wind farm to a mainland power grid could, hypothetically, could end up on someone’s private property. In this case, the landowner would need to be compensated. For the Block Island Wind Farm, however, cable landing sites are on state-owned beaches―one at Crescent Beach in New Shoreham and the other at Scarborough State Beach in Narragansett.

This is one form of takings in which property is directly appropriated. Other forms of takings cases can arise if project activities prevent the beneficial use and enjoyment of the property.

As there are no takings cases to date challenging offshore wind farms, Thompson and Porter examined takings litigation from the analogous situation of onshore wind development. These cases, they note, have been few and have limitations in their applicability to offshore development. The study suggests current evidence that turbines have minimal or even positive impacts on property values in Rhode Island could be a barrier for future takings claims by landowners, and that a takings liability is a low concern at this time for offshore wind development.

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