Environmental, Natural Resources, & Energy Law Blog
Can Wind Power Coexist with Ocean Species, and the Lobster Industry in Maine - Patricia Howe
CAN WIND POWER COEXIST WITH OCEAN SPECIES, AND THE LOBSTER INDUSTRY IN MAINE
Lewis & Clark
President Biden has committed to addressing the climate crisis we currently face by initiating proposals for clean energy sources. One such proposal, to deploy 30 gigawatts of offshore wind energy capacity by 2030, has prompted the federal Bureau of Ocean Energy Management (BOEM) to develop plans for offshore wind farms in the Gulf of Maine. Maine’s Governor Mills intercepted this plan by signing into law LD 1619, banning new offshore wind farms in State waters. The rationale for this ban is to protect Maine’s lucrative lobster industry. Maine’s commercial lobster harvesting occurs in large part, in State waters. In addition to economic and industry concerns, there are also concerns about the threat to the North Atlantic right whale species and its habitat. The North Atlantic right whale is nearing extinction.Offshore wind farms could threaten recovery of the North Atlantic right whale and the ecosystem they rely on. Wind energy provides cost-effective, clean and sustainable energy that is desperately needed to address GHG emissions from the fossil fuel energy our nation relies so heavily on. There are solutions that can be created to allow offshore wind farms to coexist with these concerns, but we are at a breaking point and running out of options. Offshore wind farms that are placed in federal waters, if designed to mitigate and minimize threats to ocean life and livelihoods, are a viable solution to address reducing climate change.
BACKGROUND: State and Federal Actions
In July 2021, Governor Mills signed a law creating a 10-year moratorium on new offshore wind projects in state waters. The law LD 1619, “An Act to Establish a Moratorium on Offshore Wind Power Projects in Maine’s Territorial Waters” was passed by emergency measure with a two-thirds vote. The new law aims to preserve one of Maine’s largest revenues, the lobster industry, by noting: “Whereas, Maine’s renewable, natural resources-based commercial fishing industry contributed direct revenues of $517 million to the State’s economy in 2020 and is a vital part of the State’s economy and cultural heritage and identity.”The law prohibits anyone from constructing or operating wind power offshore in Maine’s territorial waters. One month prior to LD 1619, Governor Mills signed into law, LD 336, a bill to create a research area for offshore floating wind turbines in Federal waters. Maine is the first state in the nation to propose this research. Three months after the new state law LD 1619 was passed, the Governor’s office applied to the BOEM for a renewable energy research lease to cover approximately 9,700 acres of offshore land in the Outer Continental Shelf for floating turbines in October 2021. The Mills Administrations goals for offshore wind industry and a transition to renewable energy was met with strong bipartisan support. ‘“Maine is uniquely prepared to grow a strong offshore wind industry, create good-paying trades and technology jobs around the state, and reduce our crippling dependence on harmful fossil fuels” said Governor Janet Mills.”’ 
On August 18, 2022, the Biden-Harris Administration announced, as part the Inflation Reduction Act, the Department of the Interior’s plans for offshore wind energy in the Gulf of Maine.On August 19, 2022 the BOEM posted Requests for Competitive Interest and public comment to the Federal Register for interested parties to lease within the Request for Interest (RFI) area for commercial wind energy projects.Environmental issues and concerns were also invited. The BOEM’s request stated: “This RFI Area consists of 13,713,825 acres located off the coasts of Massachusetts, New Hampshire, and Maine”.. In Maine the lease area is approximately 68,320 acres.
Floating offshore wind turbines require technology that is in the fairly early stages of development. The Governor’s goal in using this process is to optimize coexistence with marine ecosystems and marine industries. However, the BOEM determined that the area requested by the State of Maine conflicted with maritime traffic within the port of Portland, Maine. Therefore, the BOEM requested that Maine address the following issues in its interested parties’ lease application: impacts to fisheries, vessel traffic, socioeconomic impacts to coastal communities, workforce development, ecosystems and environment, and assessment of floating designs. These all fall under the category BOEM calls “Human Dimensions”.
ANALYSIS: Offshore Wind and Environmental and Socioeconomic Concerns
I address two of the above issues that are the most controversial - ecosystems and socioeconomic impacts as related to the lobster industry. In terms of ecosystem issues, the lobster industry in Maine has been hit hard with controversy over the protection of the North Atlantic (NA) right whale. The lobster industry is a way of life for many Maine families who for generations have supported not only their own families, but have also provided over 80% of all US lobster to the industry. There is ongoing skepticism about how much the lobster industry is to blame for the decline of the NA right whale. The addition of the Mills Administration’s research application for offshore floating wind turbines puts Maine’s lobster industry in the middle of a species and climate crisis war. There needs to be a solution that allows for the coexistence of one of Maine’s largest industries to survive, the preservation of a whale population, and an alternative to clean energy.
The Maine lobster industry has taken proactive measures to effectively work toward preserving the NA right whale population. They have implemented changes to their industry such as reducing rope, reducing gear in waters, traceability of Maine Lobster gear, and looking at more solutions to protect the NA right whale if it encounters lobster fishing gear. A recent report notes: “The industry recognizes the precarious situation of the North Atlantic right whale, and since the 1990s fishermen have been taking proactive steps to ensure the fishery and the whales can co-exist.”Maine fishermen are taking the best approach possible, but cannot be held accountable for the entire NA right whale population that migrates along the east coast in its entirety from Florida to Canada.
Most recently, the nonprofit organization, Monterey Bay Aquarium Seafood Watch, put lobster on its “Red List”.The organization claims that the risks of whale entanglement in lobster nets threaten to endanger the NA right whales. The Maine lobster industry claims the organization has no evidence of this. Senator Angus King of Maine went so far as to state, “What in the hell are these people thinking?” calling the listing “egregiously irresponsible”. Governor Mills claims the lobster industry has a very low risk to the whales, documenting the last right whale entanglement in Maine was “2004”.
It is quite clear that before the threat to the NA right whale became a public concern and interest of advocacy groups, the Maine lobster industry was taking steps to protect the species on their own account. By taking the lead in making adjustments to their harvesting practices they created a model of protection of the NA right whale that is worthy of acknowledgment, and not deserving of attack.
On the second issue, socioeconomics, when the Maine Lobster industry is not striking down claims of endangering the NA right whale, it is fighting its own endangerment with the proposed offshore wind project in the Gulf of Maine. Governor Mills’ application for research of floating wind turbines submitted to the BOEM will be located about two miles south of Monhegan. Lobstermen argue it will force them out of their habitat and damage marine life.
The Maine Lobster industry has decades of familial roots that require unlimited access to shoreline ocean territory. Lobster fishing is also an important economic staple to the small coastal communities they call home. The NA right whale population has been declining and has been listed under the ESA for over 50 years. Their greatest threats are ships, and entanglement in commercial fishing gear. Offshore wind turbines will add to the list of threats for this endangered species. Governor Mills has allotted $6M to invest in solutions to bring Maine to climate neutrality by 2045. A large part of this promise rests in the development of offshore floating wind turbines for clean energy. We are in a climate crisis that needs solutions, but we also need to be concerned about solutions that endanger the livelihood of families that rely on industries dependent on ocean shores, as well as species that depend on ocean habitats to exist. It is a concept of embracing coexistence among a network of human and animal species that depend on each other and also the health of our natural resources for survival.
The survival of the lobster industry, the NA right whale, and the environment is vital to economic and natural resources. Will this be a fight for survival or an example of what we are forced to solve; the domino effect of the climate crisis that was not believed for too long? Livelihoods and ecosystems have paid the price and are losing the battle against the greater concern– the benefit of all for a cleaner earth. The federal and state governments and agencies need to put the most effective, science-based plans in place that allow for the success of industry and survival of species, and the public needs to demand it. Coexistence cannot be an option, it needs to be the priority. The combined efforts of government, scientists, and public involvement can only be a step in the right direction in one of the greatest challenges of the 21st century, the challenge of saving not only lives and the economy but the natural resources they need to survive.
A source of clean energy needs to replace our reliance on fossil fuels. Wind energy is a viable solution, and offshore wind farms are a sensible plan. The challenge is to create clean energy plans that do not create more damage to our fragile planet and its inhabitants. As a resident of Maine, I am hopeful of the progressive and preventive measures that the Mills Administration is taking with LD 1619; however, this law is contradicted by LD 336. Researching floating wind turbines to determine the effects they have on species and their ocean habitat is good science, but not at the cost of affecting the lobster industry that not only Maine relies on, but also many of Maine’s families for economic survival. The lobster industry’s anger is justified. The Mills Administration seems to have missed the mark with LD 336. In theory it is a solution that is undeniably the best use of scientific research, but in practice it needs more thought. Both laws have the intent to protect Maine’s coast and State waters, but they are not cohesive. Using current technology and best science practices to design offshore wind farms in federal waters can address reducing climate change, and can be designed to mitigate and minimize threats to ocean life and livelihoods. The laws passed to oversee this process need to be written with the same goals, and in both theory and practice.
 “Biden-Harris Administration Continues Offshore Wind Momentum, Announces Next Steps for Gulf of Maine”. August 18, 2022. https://www.doi.gov/pressreleases/biden-harris-administration-continues-offshore-wind-momentum-announces-next-steps-gulf.
 Gulf of Maine Floating Offshore Wind Research Array https://www.maine.gov/energy/initiatives/ offshorewind/researcharray.
 Losneck, Caroline. The Live Market: Maine’s lobster industry is at a turning point for value — and changes. March 2, 2022. https://www.nationalfisherman.com/northeast/the-live-market-maine-s-lobster-industry-is-at-turning-point-for-value-and-changes.
 MAINE LOBSTERMEN WORKING TO PROTECT RIGHT WHALES. https://rightwhalesandmainelobster.com.
Osborne, Margaret. Seafood Watch announced that consumers should avoid lobsters, because their traps threaten the endangered North Atlantic right whale. September 13, 2022. https://www.smithsonianmag.com/smart-news/lobsters-placed-on-red-list-angering-maine-fishing-community-180980748/.
 Taylor, Austin. Lobstermen Protest Offshore Wind in the Gulf of Maine. June 5, 2021. https://harvardpolitics.com/lobstermen-protest-offshore-wind/.
 Research Lease on the Outer Continental Shelf (OCS) in the Gulf of Maine, Request for Competitive Interest (RFCI)A Notice by the Ocean Energy Management Bureau. August 19, 2022. 08/19/2022. www.federalregister.gov/documents/2022/08/19/2022-17922/research-lease on-the-outer-continental-shelf-ocs-in-the-gulf-of-maine-request-for-competitive.
 Revello, Katherine. Fishing interests ‘disappointed’ in federal push for offshore wind in Gulf of Maine. August 23, 2022. www.themainewire.com/2022/08/fishing-interests-disappointed-in federal-push-for-offshore-wind-in-gulf-of-maine.
 Whittle, Patrick. Feds unveil plan to grow wind power while sparing rare whale. October 30, 2022. https://wgme.com/news/local/wind-farms-and-whales.
 -- -. Endangered whale’s decline slows, but population falls again. October 24, 2022.https://abcnews.go.com/Technology/wireStory/endangered-whales-decline-slows-population-falls-91998253.
 Governor Mills Signs Legislation Prohibiting Offshore Wind Projects in State Waters. Office of Governor Janet T. Mills, Maine.gov., July 7, 2021. www.maine.gov/governor/mills/news/governor-mills-signs-legislation-prohibiting-offshore-wind-projects-state-waters-2021-07-08.
LD 336 State of Maine Legislature, June 22, 2021. https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280078540
LD 1619 State of Maine Legislature, July 6, 2021. https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280080649.
 FACT SHEET: Biden Administration Jumpstarts Offshore Wind Energy Projects to Create Jobs, WH.GOV, March 29, 2021. https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/29/fact-sheet-biden-administration-jumpstarts-offshore-wind-energy-projects-to-create-jobs/.