Why Have Developers Been Powerless to Develop Ocean Power?

Abstract:     
This Article suggests that regulation by the Federal Energy Regulatory Commission (FERC) offers a robust alternative to regulation by the Mineral Mining Service (MMS) for those alternative energy projects located between three to twelve nautical miles from the U.S. shore. The paper briefly illustrates the ocean’s immense potential to provide this nation with clean, sustainable, and cost-effective energy from ocean waves, tides, and currents. The paper then shows how a heated territorial dispute between FERC and MMS for control over these green energy projects obstructed the research and development necessary to make them viable as the administrative conflict generated immense risks and costs for developers. The paper discusses how ambiguous statutory authority does little to resolve the administrative debate. The paper next compares the relative capabilities of the two agencies and demonstrates that giving FERC lead authority is the soundest solution as FERC (1) has already established a regulatory regime better designed to respond to the needs of the nascent industry; (2) possesses the greatest expertise with hydropower technologies; and (3) has primary jurisdiction over hydrokinetic projects out to approximately three nautical miles from the shoreline already. Beyond these advantages, the paper further discusses the societal benefits of permanent resolution of the debate so that this "blue" green industry may flourish.

Number of Pages in PDF File: 44

Accepted Paper Series