Offshore wind farms, tidal power, and wave power have tremendous momentum in the push for green energy and may also pose serious threats to marine life. For all three sources, the best place to harness that energy is in the most critical space for marine life: the coast. The wind, waves, and tide are more abundant, stronger, and easier to capture on the coast than if placed elsewhere. Marine life peaks on the coast; many species of fish and mammals spend their lives on the coast as they naturally rely on it to eat, procreate, and give birth. Not only do green energy initiatives need to be placed in a critical area in the marine ecosystem to best harness and harvest the energy, the long-term problems that come from these projects could also have a lasting impact.
At first glance, it may seem paradoxical that switching to environmentally friendly forms of renewable energy would be in conflict with conservation efforts, but conservationists and scientists agree that just because we can solve one problem by reducing—or better yet eliminating—our use of fossil fuels does not mean we won’t be simply trading one evil for another. Studies have shown that offshore renewable energy projects serve as both a “highly valuable means of climate mitigation and a serious threat to certain habitats.”
Previous mass-infrastructure initiatives in the United States did not have to take many of today’s concerns, such as the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA), into consideration. With such a strong push from nations across the world and intercontinental green energy initiatives with ambitious deadlines, it is easy to see how we would want to cut through the red tape and begin construction quickly, like in the past. Although the purpose behind marine life conservation laws are good, and they generally force compliance when it comes to green energy initiatives, they seemingly only provide short-term protection to vulnerable species as the law generally defers to the demands of climate change activists.
Offshore Wind Farms
Offshore wind farms pose well-known threats to marine life that begin with their construction and continue as long as they are in use. The Bureau of Land Management has done studies and determined that the construction noise alone associated with building offshore wind farms can have a lasting negative impact on marine life. Victoria Todd, a marine biologist who has spent years studying the impact offshore wind farms have on marine life, maintains that the construction phase has the biggest impact on marine life, as the pulses during construction can affect some species up to 12.5 miles away and the continued noise, which lasts for weeks or months on end, can permanently push out marine life from their natural habitat. Moreover, impact pile driving for wind turbines can generate sound that reaches up to 24 miles from its source, pushing out an even greater number of animals.
This construction noise could permanently damage the hearing of animals close by and will displace marine animals from this critical area and force them to risk starvation by moving into unfamiliar territory. Marine animals rely on noise far more than vision to communicate, navigate, and hunt because noise travels much farther than light in the water. Human noise pollution risks drowning out all the natural sounds from the ocean on which these animals rely. To illustrate this problem, crustaceans lose their ability to eat but gain the ability to swim when transitioning from being a juvenile to an adult, and it is critical for them to hear the sounds of the coast in order to reach the shore before they starve to complete the transition to adulthood. With too much noise drowning out the natural sounds of the ocean, the crustaceans will never find the coast and will starve.
Developers of offshore wind farms are attempting to convince decision-makers that the timing of these construction projects can reduce the impact on marine life. For example, on the U.S. East Coast, offshore wind developers are trying to protect threatened and endangered whales in the area by timing the construction of their projects for only after the whales migrate through the area. However, scientists maintain that it is far from clear if this prolonged, wide-spread noise causes marine life to temporarily or permanently leave their habitat. That is why Bruna Campos, a marine and fisheries policy officer, maintains “[w]e want renewable energy, and we fully support the commitments that have been made, but we think offshore wind farms need to go through the same review process as any other type of energy project.” Authorities are trying to balance the need for large-scale offshore wind farms with long-term marine life impacts, but the external pressures to fast-track green energy projects mean these projects often fall short of their legal obligations.
Beyond the initial construction phase of offshore wind farms, the continuous electromagnetic fields that travel from the wind farms to the power station where the energy is harvested will have a prolonged negative impact for as long as the wind farm is in use. Electromagnetic fields are particularly important for sharks and rays who use electromagnetic fields to hunt. Cables along the ocean floor transmitting wind energy will disrupt their hunting ability by overpopulating the area with disorienting electromagnetic energy. Electromagnetic currents do not travel nearly as far in the water as noise, which makes this largely a local problem. However, as previously discussed, these offshore wind farms are placed on the coast, which is a critical hunting area for these predators. Therefore, while it may be a localized problem, it impacts a critical hunting ground and could have devastating consequences.
Hydrokinetic Power
Tidal and wave power, as compared to offshore wind power, are in their infancy, and far less is known about the possible negative impacts they may have on marine life. However, what we do know is that, much like with offshore wind farms, tidal power relies on high and low tide to produce power, and, therefore, the devices must be utilized on the coast where the habitat is so crucial for marine life. Moreover, because both tidal and wave power use the ocean’s energy to drive underwater hydraulic turbines, which essentially operate in the same way as wind turbines except waves and tides control their movement, they will have many of the same problems associated with them as with offshore wind farms; they will destroy marine habitats and will directly kill wildlife. An additional problem tidal and wave power presents to marine life is that the moving blades will now be underwater as opposed to hundreds of feet above the water.
Although these new sources of energy could produce even greater threats to marine life, Andrea Copping, an offshore energy expert at the U.S. Department of Energy, maintains the threat of animals being hit by the moving blades is quite low based on experiments conducted in anticipation of lawsuits raised by conservationists. Additionally, in an experimental wave energy project being conducted off the coast of Scotland, no animals have been reported injured or killed. These promising results are not preventing scientists from developing additional measures to prevent harm to animals, such as deploying acoustic deterrent devices, increasing the underwater visibility of the blades, shielding the turbines, and reducing the sharp edges of the turbines.
Although the initial results regarding the danger of the underwater turbines appear promising, there is still much to learn about the long-term repercussions of hydrokinetic green energy. Additionally, there is still no solution for the construction noise and electromagnetic fields these devices will give off. Researchers are also concerned about the increased boat traffic for maintenance, even after construction is complete, as this could disrupt marine life more than the devices themselves. This is especially true for tidal and wave power, which are new green energy initiatives without a proven prototype and will require far more maintenance than a wind turbine.
CURRENT LEGISLATION
The two laws that do the most to protect marine life from the imprudent decision of developing green energy without understanding the long-term consequences are the Endangered Species Act (“ESA”) and the Marine Mammal Protection Act (“MMPA”). Although these two laws are considered the most robust laws protecting marine life in the world, they still have shortcomings that could be devastating to marine life in the face of offshore renewable energy initiatives.
Endangered Species Act & Marine Mammal Protection Act
The ESA is considered the strongest law passed by any nation aimed at protecting endangered and threatened animals. The purpose of the ESA is to “prevent the extinction of the most at-risk animals, increase their numbers, and effect a full recovery.” Likewise, the MMPA is a more specific law protecting marine mammals from extinction and effecting a full recovery. Instead of respecting the purpose of these laws and working within them, many climate change activists view these laws as costly obstacles.
These laws prohibit any action that causes a “taking” of any listed species without a habitat conservation plan and incidental take permit. A “taking” under the ESA and MMPA is a broad term that encompasses both direct harm to listed species and indirect harm through alterations to the habitat. Both types of takings are at issue regarding green energy initiatives. A habitat conservation plan and incidental take permit allow for the taking of protected species if the activity is otherwise in accordance with the law and is approved by the Secretary of the Interior and the Secretary of Commerce, who has delegated that authority to the U.S. Fish and Wildlife Service and The U.S. National Oceanic and Atmospheric Administration Fisheries Service. These regulatory agencies are authorized to allow “incidental takings” of small numbers of marine mammals for green energy initiatives. Two considerations these agencies must take into account in approving incidental takings include “marine ecosystem” and “environmental considerations.” While only small numbers of protected species may be taken during the construction of green energy projects to be in compliance with the law, an untold number of these animals would be taken in the long-term if the proper procedures are not followed to mitigate the noise and electromagnetic concerns.
Global warming is undoubtedly a justified reason for the regulatory agencies to approve of incidental takings under both the ESA and MMPA, which is why applications for green energy projects are essentially being rubber-stamped by the necessary agencies. However, with scientists and developers being rushed into developing renewable sources of green energy without fully understanding the long-term consequences and the applicable agencies rubber-stamping only short-term incidental takings of protected species, conservationists argue that no one is adequately watching out for the long-term well-being of these species. The problem is that scientists and developers do not fully understand the long-term risks of the offshore green energy projects being approved by the regulatory agencies because of the tremendous pressures from governments to meet ambitions deadlines for green energy initiatives. For example, since 2012, wind power has been presented as not having an impact on the ESA, with the exception of bird collisions, and therefore offshore wind farms have not even considered environmental impacts until recently. The end result of this predicament is that the ESA and MMPA are only adequately protecting these listed species during the short-term construction phase of green energy projects, and their long-term well-being is left wholly to the rushed and pressured judgment of the scientists and developers who are not being given adequate time to fully assess the long-term consequences for marine life.
Not only are the ESA and MMPA insufficient in the face of green energy initiatives, but changes to the ESA by the Trump administration via regulatory rollbacks will “weaken it beyond recognition.” The Trump administration has already made three critical changes to the ESA and its enforcement and has proposed more. First, under ESA Section 4(d), threatened species that are not yet endangered receive proactive regulations to prevent them from becoming endangered. However, under the Trump administration, threatened species are given tailored protections as opposed to blanket protections, which ultimately result in fewer protections given and an increased likelihood of the species ending up on the endangered species list. Second, the ESA and MMPA work to not only prevent extinction but also to enable a full recovery. An important piece of a full recovery is the protection of critical habitats. The Trump administration has rolled back regulations in such a way as to only designate habitats as “critical habitats” worthy of protection after it has been determined that the habitats currently being occupied by the species in question have become inadequate. This provides a slower reaction time as proactive measures to preserve critical habitats will not be taken. Finally, the ESA has historically only relied on scientific data to determine if a species should be added to threatened or endangered listings. However, the Trump administration now allows for a cost-benefit analysis to be conducted before a species is added to this list. This will result in fewer species being given the protections needed.
The fundamental purpose of the ESA and MMPA is facing significant hostility from both sides of the political aisle. Whether by trading one evil for another without understanding the long-term costs of offshore green energy or by rolling back regulations aimed at protecting these species, the current “status quo” must change for the survival of many species.
PROPOSED SOLUTION
There is no simple solution to this delicate problem of weighing the urgency of reducing global warming while ensuring the long-term well-being of marine life. However, viewing the already devastated ESA and MMPA as obstacles in the way of climate change activists’ desires and not acting in accordance with the spirit of those laws will undoubtedly trade one evil for another. The development of green energy solutions to combat climate change should proceed in a deliberate manner with an eye towards how these developments will impact marine life in the long-term. Scientists must be given adequate time to determine the likely long-term impacts of different renewable energy sources and develop, to the furthest extent possible, a ranking of preferred sources of green energy that limit significant ecosystem impacts.
The interests of conservationists and climate change activists can be harmonized. The first step in doing so, however, is to forego the unrealistic timelines climate change activists demand, as it leaves no room to develop the science and, instead, requires immediate large-scale action. This push for more reliance on offshore green energy without first understanding the potential impact it would have on marine life may ultimately have deadly consequences for marine life. Make no mistake, the switch to renewable energy requires urgency, but to preserve the planet in a way that doesn’t devastate marine life, we must follow the spirit of conservation laws by looking after the animals’ long-term interests. While the ESA and MMPA certainly help in preventing the destruction of marine life, they need to be amended to adequately protect the long-term sustainability of vulnerable marine life in the face of offshore green energy projects.
Colin Kennedy is a second-year law student at Northeastern University School of Law. Prior to law school, he graduated from the University of Cincinnati with degrees in criminal justice and business management. He currently serves as the Co-Chairman of the Veteran Law Students Association as well as a Teaching Assistant for Dean Hackney. Colin has a passion for marine conservation and is interested in how the law, government policy, and public policy intersect with this passion.