Mark Nevitt on “Can we Reconcile Clean Energy Goals with National Security?”

In today’s post Mark Nevitt, Associate Professor of Law at Emory University School of Law, expertly addresses news reports about a supposed controversy between the Pentagon and the Interior Department regarding plans for offshore wind turbines that could, it is contended, interfere with military training and readiness.

Mark, a Lawfire contributor and LENS Conference participant, is exactly the right person to do this analysis.  A former Navy judge advocate (and Navy aviator) he was also a DoD Regional Environmental Counsel.  Today he is one of the nation’s foremost authorities on the connection between environmental goals and national security.  Before you make any decisions about this controversy, be sure to read Mark’s essay below!

Can we Reconcile Clean Energy Goals with National Security?

by Prof. Mark Nevitt

Reporting from Bloomberg, Fox News, and the Wall Street Journal suggest that there is a fight brewing between the Pentagon and the Department of the Interior over offshore wind turbines.  These outlets reported that the Department of the Interior ignored the Pentagon’s warnings when it issued an early-stage plan to lease several offshore wind installations on the U.S. continental shelf.  The Wall Street Journal lamented that climate change appears to “supersede[s] even national defense” within the Biden Administration.

An Overhyped Narrative? 

 According to these reports, these offshore wind turbines could interfere with military training and readiness, but the Department of Interior simply refused to take the Pentagon’s concerns into account.   Specifically, Bloomberg reported that four of the planned offshore wind leases are being placed in locations that the Air Force and Navy identify on maps as “highly problematic.”

The news cycle may love a narrative that pits national security with the environment, but there is still much we don’t know.  Indeed, we are in the early innings of a long process in offshore wind development along the mid-Atlantic seaboard.  In the interim, I remain wary of any reporting that highlights a deep, intractable conflict between the Pentagon and Interior.

And some perspective is in order: these six lease areas represent a massive, historic investment in domestic wind energy in a part of the mid-Atlantic new to offshore wind.  There is bound to be some degree of interagency friction.

Key National Security Infrastructure Affected 

To be sure, the mid-Atlantic coast is rich in military training areas that are critical to our national defense.  This area is home to Naval Air Station Patuxent River (home to Navy Test Pilot School), Naval Air Station Oceana (home to the Navy’s East Coast fighter fleet), and Joint Base Langley Fort Eustis (home to the Air Force’s Air Combat Command).  It also includes Dare County Bombing Range on the North Carolina Outer Banks. 

Further, Norfolk Naval Station—the largest naval base in the world—is in Hampton Roads, VA.  As part of the military’s statutory Title 10 “train and equip” mission, the military trains along the eastern seaboard to prepare for future operations at home and abroad.   The military needs training ranges, sea lanes of passage, and the ability to use its radar and munitions in a manner that mirrors actual conflict.

Bold Plans for Renewable Energy 

The U.S.’s mid-Atlantic continental shelf is also prime real estate for offshore wind projects due to its shallow waters and relatively stable soil.  In contrast, California suffers from a steeper continental shelf and “mushier” soil— a bad combination for massive wind turbines that can be triple the height of the Statute of Liberty. 

If the President is going to meet his bold renewable energy and offshore wind goals, successful wind projects in the mid-Atlantic are critical.

The Biden Administration has pushed hard for investment in the American clean energy sector with the goals of reducing greenhouse gas emissions, creating jobs, and making the U.S. more energy independent.  One of his first executive orders, Tackling the Climate Crisis at Home and Abroad,” laid out an ambitious plan to do just that.  Since then, the Biden Administration has issued new rules for electric vehicles and signed the Inflation Reduction Act into law—significant environmental, energy, and climate achievements. 

Despite the media hype of a Pentagon snubbing, offshore wind investment does raise some legitimate questions whether we can balance meeting clean energy goals with the military’s operational and training requirements.  In what follows, I highlight four factors showcasing how this balancing act is likely to unfold and where we should focus our attention.  I remain hopeful that the U.S. can achieve clean energy goals without sacrificing military readiness.

Four Factors to Guide Offshore Wind Siting 

1.) The Role of the Military Siting Clearinghouse 

First, the DoD has historically given a lot of thought to energy siting projects through a dedicated Military Siting Clearinghouse.  This office has the express goal of addressing and overcoming risks to national security while promoting compatible domestic energy development.  In doing so, the Clearinghouse works with industry to meet the nation’s energy needs. 

Federal law requires entities to give notice for projects that affect military operations and readiness.  Law and regulation mandate consultation with the Secretary of Defense.  Assuming these projects make their way through the formal Clearinghouse process, the Secretary of Defense could find that any one of these projects poses an unacceptable national security risk to the United States.” It’s inconceivable to me that these projects would be able to move forward without changes in the event that such a finding was made.

2.) The Importance of Consultation & Compromise 

Second, many of the national security concerns are classified, and it appears that the Pentagon is actively consulting with the Interior’s Bureau of Ocean Energy Management on mitigation strategies as we speak.  

Questions arise.  Can the Pentagon modify its training regime and patterns without sacrificing operational risk?  Are there mitigation measures that the Interior can put in place on the offshore leases that minimize any national security burden?  While the reporting suggests that Interior has done initial consultation with groups other than the Pentagon, there is a sizable amount that we don’t know and it remains unclear when and where the Siting Clearinghouse and Pentagon will formally engage.  

3.) Role of Federal & State Environmental Laws 

Third, prior to the wind farms being installed, a host of additional federal and state legal requirements must be met. For example, these projects are surelymajor federal actions that significantly affect the environment that trigger consultation and procedural requirements under the National Environmental Policy Act (NEPA).  

Other laws requiring public and agency consultation—to include the Endangered Species Act and Magnuson-Stevens Fishery Conservation and Management Act—must also be addressed.  Relatedly,  Congress has waived sovereign immunity for federal agencies—to include the DoD—within a host of federal environmental laws.  This means that the military must comply with environmental laws and regulations “in the same manner and extent as any non-federal entity.” 

These laws provide for public comment from diverse stakeholders who can voice their support or opposition to the project.  For example, while many environmentalists love wind turbines for their renewable energy, some remain cautious of offshore wind for their impact on migratory birds and ecological disturbance. Their voice will be heard, irrespective of Pentagon concerns. 

Still others have criticized NEPA and other environmental laws for stalling renewable energy projects that advance broader clean energy goals.  The upshot:  offshore wind leases must pass a series of regulatory hurdles with diverse stakeholder input before construction commences. 

In addition, the Coastal Zone Management Act is critical to such a project  and must be taken into account.  Of note, all the affected states have federally-approved coastal management plans, which.  provide for additional state regulatory authority over these projects.

When I served as the DoD Regional Environmental Counsel in Norfolk, VA, I found that state and local legislators were reluctant to take any action that would jeopardize U.S. national security and harm the military mission and they would seek to find some reasonable compromise.  After all, federal facilities and military installations serve as significant economic engines for the local economy.

4.) Follow the Money: The Need for Regulatory Certainty 

Fourth, no private investor is going to proceed with construction and leasing without some reasonable assurances that the Department of the Interior and Pentagon have had a meeting of the minds.  After all, these are massive, multi-million dollar projects.  They can make or break renewable energy companies if they get tied up in a regulatory blackhole or an interagency staring contest.

In my home state of Rhode Island, the Block Island Wind Farm—the largest offshore wind farm in North America—cost nearly $300 million dollars.  That was in 2016.  It is not inconceivable that the mid-Atlantic wind projects will cost in excess of a billion dollars.  Investors and construction companies want regulatory certainty and won’t move forward without it.  

Energy Security = National Security 

In sum, we should take a step back and ignore the media hype.  Rather, we should  acknowledge that U.S.–produced renewable energy sources and national security interests are inextricably linked.   While the U.S. is blessed with enormous energy resources, that has not always been the case.  As I have argued before, the Russia-Ukraine War highlights the national security risk posed by reliance on outside energy sources.  Does anyone trust petrostate Russia for reliable energy?

Energy security is national security.   And offshore wind can enhance national security. Domestic energy sources better protects that nation from global energy price shocks.  Renewable energy development comes with the added benefit of meeting domestic and international climate commitments—something that should be embrace. 

As we move forward on domestic offshore wind development, focus on these four factors. I am confident that the ultimate answer to this question–can we reconcile clean energy goals with national security goals?—will be a resounding “yes.”

About the Author

Mark Nevitt is an Associate Professor of Law at Emory University School of Law.  A former tactical jet aviator and Navy judge advocate (JAG), he has taught at University of Pennsylvania Law School, U.S. Naval Academy, and Syracuse University College of Law.  Originally from Rhode Island, Nevitt received his J.D. and LL.M. (with distinction) from the Georgetown University Law Center and his B.S.E. from the Wharton School, University of Pennsylvania.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.  

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!




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