The following is a brief research paper that I wrote on ocean energy for an energy law course I took at Vermont Law School in 2009. This paper required research on energy policy, congressional legislation, and administration regulations.

1. Ocean Energy: A Solution for America’s Energy Problem
Adam Sherwin
America’s energy future can be described as a “trilemma.”1 The challenge of meeting the
country’s energy demands requires consideration of three central problems: national security and
reliability costs, financial costs, and environmental costs.2 Solving this “trilemma” requires
solutions that take into account each of these factors. While there are no easy solutions, ocean
energy is one way of helping America with its energy problem.
Ocean energy has enormous potential as an energy source. Experts estimate that the
ocean could generate up to two terawatts of electricity, which would equivalent to twice of the
world’s electricity production.3 Ocean energy comes from two main sources: wave and tidal
power.4 Wave power is the generation of electricity from ocean waves, and is produced through
both onshore and offshore systems.5 Examples of these systems include floats that rotate
turbines as they are “bobbed” from the movement of waves, and partially submerged water
columns that rise and fall from waves, creating air pressure that rotates a turbine.6 Tidal power is
generated from ocean tides forcing water through submerged turbines.7 Because of the need for
strong tides and waves, only certain locations are optimal for these systems, including the
western coasts of Scotland, northern Canada, southern Africa, Australia, and the northeastern and
northwestern coasts of the United States.8
State and federal approval processes are required for ocean energy facilities. For projects
located within the jurisdiction of states, facilities must generally go through the standard siting
1
MICHAEL DWORKIN, INS. FOR ENERGY AND THE ENV’T, VT. LAW SCHOOL, ENERGY POLICY FOR A CARBON CONSTRAINED
WORLD: AN INTRODUCTION TO OUR TRILEMMA 7 (2009).
2
Id.
3
Lisa A. Kelley, Comment, The Power of the Sea: Using Ocean Energy to Meet Florida’s Need for Power, 37
ENVTL. L. 489, 492 (2007).
4
Kate Galbraith, Power from the Sea Stirs the Imagination, N.Y. TIMES, Sept. 23, 2008, at C3. The ocean is also
capable of producing thermal energy, which uses the energy stored in oceans to produce electricity. Energy Savers,
U.S. Dept’ of Energy, Energy Savers: Ocean Thermal Energy Conversion,
http://www.energysavers.gov/renewable_energy/ocean/index.cfm/mytopic=50010 (last visited Oct. 13, 2009).
Similar to wave and tidal power, ocean thermal energy has the possibility of producing enormous amounts of
electricity. Id.
5
Energy Savers, U.S. Dept’ of Energy, Energy Savers: Ocean Wave Power, http://www.energysavers.gov/
renewable_ energy/ ocean/index.cfm/mytopic=50009 (last visited Oct. 13, 2009).
6
Id.
7
Energy Savers, U.S. Dept’ of Energy, Energy Savers: Ocean Tidal Power, http://www.energysavers.gov/
renewable_ energy/ ocean/index.cfm/mytopic=50008 (last visited Oct. 13, 2009).
8
Energy Savers: Ocean Tidal Power, supra note 7; Energy Savers: Ocean Wave Power, supra note 5.

2. process required for electric generation facilities.9 For facilities to be located on the Outer
Continental Shelf (“OCS”), which are “all submerged lands lying seaward and outside of the
area of lands beneath navigable waters,”10 the federal government is responsible for granting
leases, easements, and right-of-ways for activities that produce energy from sources other than
oil and gas.11 The Department of the Interior is responsible for this process, and uses a
Renewable Energy Framework that includes consideration of safety, protection of the
environment, coordination with affected state, local governments and federal agencies, fair return
of use of OSC lands, and equitable sharing of revenue with states.12
Ocean energy currently represents a negligible share of America’s energy production.13
Compared to other renewable energy sources, ocean energy has yet to be widely used as a viable
means of generating electricity.14 Several obstacles have impeded the development of these
projects. First, these facilities are expensive to build, particularly because of their enormous
fixed costs, including expenses for permits, surveys, grid connection, and research and
development.15 As a new technology, these facilities are not fully reliable, and developers will
need to modify and redesign these models over time, which further increases their production
costs.16 These high costs require developers to raise large amounts of capital, which prevents
these facilities from being easily constructed.
Aesthetics are another problem for developing ocean energy facilities. While most tidal
energy facilities will be submerged and not visible from the shorelines, wave energy facilities
use floats, buoys, and other equipment that need to be near the water’s surface. The negative
visual impact that some believe these facilities will cause has been a driving force in opposing
9
Kelley, supra note 3, at 506–07.
10
43 U.S.C. § 1331(a) (2009). States have jurisdiction over submerged lands extending up to three miles from the
coast, and the federal government has jurisdiction over the rest of the OCS. Id. § 1301(b).
11
Id. § 1337(p)(1)(c) (2009).
12
MINERALS MGMT. SERV, U.S. DEP’T OF THE INTERIOR, WORKSHOP ON THE OUTER CONTINENTAL SHELF RENEWABLE ENERGY
REGULATORY FRAMEWORK 5 (2009), available at http://www.mms.gov/ PDFs /DC workshop060409.pdf.
13
See Energy Info. Admin., U.S. Dep’t of Energy, Renewable Energy Sources – Energy Explained, Your Guide to
Understanding Energy, http://tonto.eia.doe.gov/energyexplained/ index.cfm?page= renewable_ home (last visited
Oct. 8, 2009) (describing America’s major renewable energy sources, which include solar, geothermal, wind,
hydropower, and biomass).
14
Id.
15
WORLD ENERGY COUNCIL, THE PROSPECTS FOR WAVE ENERGY, SURVEY OF ENERGY RESOURCES 2007 (2007), available at
http://www.worldenergy.org/ publications/ survey_of_energy_resources_2 007/ wave_ energy/763.asp. Pelamis
Wave Power, a Scottish energy company, needed to raise $77 million to develop a small wave-energy farm off the
coast of Portugal. Kate Galbraith, Power from the Sea Stirs the Imagination, N.Y. TIMES, Sept. 23, 2008, at C3.
This is significantly more expensive than other renewable energy sources, such as solar energy, which developers
can start-up for as little at $5 million. Id.
16
Id.
2

3. these projects.17 This is similar to concerns that others have had over “wind farms” that would
be located on mountains, ridgelines, and other scenic areas.18 Because aesthetics is often a
criterion in the siting process of electric generation facilities, such concerns make it harder for
developers to get these projects approved.
Finally, potential environmental problems are another challenge facing ocean energy
facilities. These concerns have arisen because of the damages that these systems could have on
the physical and biological environment, with possible detrimental effects on ocean currents and
waves and harm to fish and wildlife.19 While these consequences are possible, most studies have
found the environmental impacts of these projects to be minimal, “provided developers show
sensitivity when selecting sites for deployment and that all the key stakeholders are consulted.”20
While these are difficult obstacles to overcome, public and private entities can do many
things to help develop ocean energy facilities. First, while the high start-up costs of these
projects are unavoidable, states and the federal government can alleviate these costs by
expanding the tax credits and subsidies that are available to companies pursuing this technology.
For example, the federal government currently offers a renewable electricity production tax
credit for “qualified energy resources,” including marine renewable energy.21 Additional
incentives like this will help developers with the large costs that are required of these projects.
Second, to deal with aesthetic, environmental, and “not in my backyard” concerns of
these facilities, private and public entities can make a better effort to win public support for these
projects. This is important considering that many renewable energy projects have failed, in large
part, due to opposition from public interest groups.22 To help build consensus for these projects,
developers can work with local planners in selecting locations that will be least burdensome to
surrounding communities. Public and private entities can also seek out new ways of constructing
these facilities that will lessen the negative impacts of these projects, such as the “Rigs to
Renewables” program, proposed by the Ocean Renewable Energy Coalition, which would use
17
Kelley, supra note 3, at 509.
18
See Editorial, Blowhards: The Fabulous Debate over Wind Power on Nantucket Sound, WALL ST . J., Jan. 24,
2009 (discussing the conflict over the proposed offshore wind farm in Massachusetts, which would be located near
Cape Cod, Martha’s Vineyard, and Nantucket).
19
U.S. DEP’T OF ENERGY, REPORT TO CONGRESS: POTENTIAL ENVIRONMENTAL EFFECTS OF MARINE AND HYDROKINECTIC ENERGY
TECHNOLOGIES, at v (2008), available at http://www.oceanrenewable.com/wp-
content/uploads/2009/01/eisa_report_draft_kl2.pdf.
20
WORLD ENERGY COUNCIL, WAVE – ENVIRONMENTAL ASPECTS, SURVEY OF ENERGY RESOURCES 2007 (2007), available at
http://www.worldenergy.org/publications/ survey_of_energy_ resources_2007/wave_ energy/762.asp.
21
26 U.S.C. § 45 (2009).
22
Kelley, supra note 3 at 512.
3

4. old offshore rigs as locations for renewable energy facilities.23 Additionally, private and public
entities can do more to educate the public about the benefits of ocean energy, and solicit public
input as to better ways of siting these facilities in communities.
Ocean energy can have an important role in helping to solve American’s “trilemma.”
Compared to current energy sources, ocean energy will produce electricity with a minimal
impact on the environment, and most importantly, without the creation of carbon emissions that
contribute to global warming. While financial costs, a part of the “trilemma,” are a significant
hurdle to overcome, states and the federal government can expand tax credits and subsidies to
support this technology. Finally, while ocean energy facilities face many of the similar aesthetic
and “not in my backyard” concerns as other renewable energy projects, public and private
entities can work together to build support for these facilities. Given America’s growing demand
for energy, and the problems posed by the “trilemma,” ocean energy should be a central part of
American’s future energy plan.
23
Timothy Holahan, Note, A Framework for Alternative Energy Development: Shifting From Drilling Rigs to
Renewables, 35 B.C. ENVTL. AFF. L. REV. 321, 322 (2008).
4