Regulating Marine Renewable Energy: a brief literature review

Exploration of the legal and policy issues surrounding marine renewable energy (MRE) technologies, is an emerging topic of interest for academics. One commentator noted in 2009 that “scholarly literature—whether on the science, environmental effects, or legal aspects of wave energy—is scarce, but growing.”[1]

Research into the scientific and environmental aspects of MRE is now well underway, with much research being conducted, particularly into environmental effects,[2] and in May 2012, an international conference was held specifically to discuss the environmental interactions of MRE.[3]

The literature regarding law and policy has been slower to develop. Much of the discussion of law and policy to date is contained in roadmap style documents and industry publications, which lack the depth of analysis necessary to inform the decisions of policymakers. Much of the literature examines the subject from a generic perspective, rather than focusing on the progress, or lack of it, in individual jurisdictions,[4] or on specific policy issues.

As such, the literature tends to make suggestions as to reforms and regulatory mechanisms, but lacks detailed analysis on whether the suggestions are effective and represent the best approach. For example, the European Ocean Energy Association roadmap suggests that more efficient consent procedures are needed and gestures toward the concept of Marine Spatial Planning, but does not explore these in further detail. Thus roadmap documents tend only a ‘first step’ in developing appropriate regulatory and policy frameworks.

Other research has aimed simply at identifying laws and policies that may be applicable to MRE projects.[5] While this is useful and necessary to assist project developers navigate current regulatory frameworks, this research cannot assist in creating an improved regulatory environment, other than indirectly by providing a basis for critique.

In 2009, Leary and Esteban,[6] in a paper entitled Renewable Energy from the Ocean and Tides: A Viable Renewable Energy Resource in Search of a Suitable Regulatory Framework, made perhaps the first effort to bring the discussion of MRE regulation into the academic context and provide a foundation and invitation for further discussion. They identify the key overall issue that regulatory frameworks are generally poor and that there is a “need for new regulatory regimes to be developed where they do not exist, and a streamlining of existing regulations where they do exist”.[7] They explore the international law aspects implications of MRE, discuss the onerous nature of environmental impact assessment requirements,[8] the absence of clear licensing frameworks, the need for reform and promotion mechanisms such as feed-in tariffs.[9]

However, Leary and Esteban do not conceptualise these issues, consider them in depth, nor assess efforts to implement reform. Furthermore, they do not address additional issues of importance such as:

- marine spatial planning and how MRE integrates with planning for the physical use of the oceans;
- equitable resource allocation, i.e. ensuring a fair distribution of the rights to explore and exploit the resource;
- the basis on which the MRE developer occupies the seabed; and
- rules for grid connection and how these will apply to commercial-scale MRE projects.

Since Leary and Esteban’s comments, regulatory frameworks have moved forward, particularly in certain jurisdictions. For example, Scotland in particular has pressed ahead with licensing, environmental assessment, and marine spatial planning issues. This presents an additional area for exploration: study of reforms implemented in jurisdictions like Scotland and assessment of whether the reforms are effective, generally applicable and future-proof.

A small number of authors have begun to follow up on Leary and Esteban’s initial foray into MRE regulation. Much of this takes a comparative approach, looking at the general frameworks for MRE in different jurisdictions: Campbell compares the US with Scotland;[10] Portman compares the US and a number of other jurisdictions;[11] Boisvert[12] considers the US and New Zealand; and Dalton et al. have compared Ireland and Europe.[13]

In addition to this comparative literature, which generally provides only a relatively superficial factual comparison between different jurisdictions, some authors have taken an issue-centred approach and have started exploring specific MRE regulation issues in more detail. For example, Todd has considered MRE from a public rights perspective,[14] Doelle provides a detailed evaluation of a Strategic Environmental Assessment undertaken in Nova Scotia, Canada,[15] and Ehrler has initiated a discussion marine spatial planning in the MRE context.[16]

A surprising gap in the literature is the lack of an attempt to draw lessons from other offshore industries, such as offshore wind and oil and gas. The similarities between these technologies and MRE suggest that much could be learned from these industries. For example, there is interest in assessing the effectiveness of SEAs in the oil and gas context and the lessons learned in that industry may be useful for the MRE industry.[17] Again, the existing roadmap-type documents simply press for SEA, without any further assessment of whether this is a sensible policy path: comparisons with well-established marine industry may assist with such an assessment.

In such a new field, the literature cannot be criticised for lacking depth, as issues must first be identified and potential solutions must first be generated as ideas before they can be more fully expounded. However, it is clear that there is a need for much more detailed research into the regulation of the emerging MRE industry. Considering that some jurisdictions have forged ahead with MRE regulation, the comparative approach is a sensible one, allowing us to learn lessons from the more advanced jurisdictions, determine whether their reforms have worked, and whether their models are the optimum. Likewise, more analysis of regulatory efforts on specific issues is needed in order to form some principles that can be useful to policymakers when creating or reforming MRE frameworks.

Further work is needed to expand on Leary and Esteban’s brief overview of MRE regulation and bring the topic of MRE law and policy firmly into the academic domain by comprehensively enunciating the regulatory and legal issues and setting out some key reform developments in relevant jurisdictions.

[1] HV Campbell, “Emerging from the Deep: Pacific Coast Wave Energy” (2009) 24 Journal of Environmental Law and Litigation 7–34 at 21 March 2012.

[2] For an overview of such research, see George Boehlert & Andrew Gill, “Environmental and Ecological Effects of Ocean Renewable Energy: A Current Synthesis” (2008) 23(2). Chris Frid et al., “The environmental interactions of tidal and wave energy generation devices” (2012) 32(1) Environmental Impact Assessment Review 133–139 .

[3] See http://www.eimr.org/docs/EIMR2012_Brochure.pdf.

[4] G Dalton et al., “Non-technical barriers to wave energy development, comparing progress in Ireland and Europe” in 8th European Wave and Tidal Energy Conference (2009) 1–9, 1 at 8 March 2012.

[5] E.g. Ocean Renewable Energy Coalition & Foundation for Ocean Renewables, “Summary Chart: Applicable Regulation of Offshore Alternative Energy Uses”; Glen Wright & David Leary, “Marine energy: overview of New Zealand law and policy” [2011] New Zealand Law Journal 227–230.

[6] David Leary & Miguel Esteban, “Renewable Energy from the Ocean and Tides: A Viable Renewable Energy Resource in Search of a Suitable Regulatory Framework” [2009] Carbon & Climate Law Review 417–425.

[7] Ibid 425.

[8] Ibid 421.

[9] Ibid 423.

[10] Holly Campbell, “A Rising Tide: Wave Energy in the United States and Scotland” (2011) 2(2) Sea Grant Law and Policy Journal 29–48.

[11] Michelle E. Portman, “Marine Renewable Energy Policy: Some US and International Perspectives Compared” (2010) 23(2) Oceanography 98–105 at 15 March 2012.

[12] Ian Boisvert, “Mountains of ‘Blue Tape’: Barriers to United States and New Zealand Marine Renewable Energy Projects” (2011) .

[13] Dalton et al., “Non-technical barriers to wave energy development, comparing progress in Ireland and Europe,” above.

[14] Paul Todd, “Marine renewable energy and public rights” (2012) 36(3) Marine Policy 667–672 .

[15] Meinhard Doelle, “The Role of Strategic Environmental Assessments (SEAs) in Energy Governance: A Case Study of Tidal Energy in Nova Scotia” [2009] Journal of Energy & Natural Resources Law 111–144 .

[16] Charles Ehler, Marine Spatial Planning - An Idea Whose Time Has Come .

[17] See, for example, Courtney Fidler & Bram Noble, “Advancing strategic environmental assessment in the offshore oil and gas sector: Lessons from Norway, Canada, and the United Kingdom” (2012) 34 Environmental Impact Assessment Review 12–21 at 23 October 2012. Meinhard Doelle, Nigel Bankes & Louie Porta, “Using Strategic Environmental Assessments to Guide Oil and Gas Exploration Decisions in the Beaufort Sea: Lessons Learned from Atlantic Canada” (2011) .