While Europe has well-established offshore wind farms off the coast of Denmark and England, currently no offshore wind farm has started production in the United States. The most prominent project, Cape Wind, has been mired in litigation for the past decade.
Recently, Texas joined the states that are seeking to push for offshore wind production. The Texas General Land Office has developed a prominent campaign to attract offshore wind entrepreneurs to the Gulf of Mexico. The Land Office cites the federal government’s absence from the Texas leasing process as a catalyst for successful offshore wind development. Although the federal government had initial difficulties with leasing on the Outer‑Continental Shelf, the Department of Interior’s “Smart from the Start” initiative directly addresses the federal government’s previous shortcomings. Therefore, the regulatory and statutory hurdles in leasing on federal and state land have diminished.
However, one unaddressed advantage of Texas’s offshore wind program is the potential for less litigation surrounding the project. Specifically, public trust doctrine claims have little chance for success in Texas. While the public trust doctrine is an ancient common law tool, the California Supreme Court breathed new life into the doctrine within the last thirty years. Traditionally, the doctrine placed limits on the state’s ability to divest submerged lands and convey them to private parties, particularly if the state’s land grant was inconsistent with the public’s rights in navigation and fishing. Unlike other states, Texas does not have an expansive public trust doctrine. It is likely offshore wind entrepreneurs will face less litigation in the Gulf of Mexico
This Comment addresses two distinct arguments. First, whether the Texas leasing and permitting regime has an advantage over the federal government’s program. Next, this Comment will discuss whether Texas still retains an unexamined advantage for offshore wind development. Specifically, whether the doctrine case law in Texas minimizes the chance for private parties to enjoin offshore wind farms in the Gulf of Mexico.