Why Have Developers Been Powerless to Develop Ocean Power?

Texas Law Journal of Oil, Gas, & Energy, Vol. 4, 2009

SMU Dedman School of Law Legal Studies Research Paper No. 68

44 Pages Posted: 20 Feb 2011 Last revised: 25 Mar 2015

Sarah Tran

Southern Methodist University - Dedman School of Law

Date Written: 2009

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.

Suggested Citation

Tran, Sarah, Why Have Developers Been Powerless to Develop Ocean Power? (2009). Texas Law Journal of Oil, Gas, & Energy, Vol. 4, 2009; SMU Dedman School of Law Legal Studies Research Paper No. 68. Available at SSRN: https://ssrn.com/abstract=1763339

Sarah Tran (Contact Author)

Southern Methodist University - Dedman School of Law

3315 Daniel
Dallas, TX 75205
United States

HOME PAGE: http://www.law.smu.edu/Faculty/Full-Time-Faculty/Tran.aspx

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