Offshore Wind Development in the Great Lakes: Accessing Untapped Energy Potential Through International and Interstate Agreement to Overcome Public Trust Concerns

Farrell, Jordan | October 24, 2022

Offshore wind energy development in the Great Lakes presents an immense opportunity for distributed generation of renewable energy; however, this potential has thus far remained untapped. One significant barrier to why there has not yet been such wind energy development in the Great Lakes is the public trust doctrine. This doctrine generally stands for the principle that a state cannot convey its submerged lands to a private party. However, there remains much legal uncertainty with regards to the doctrine. Courts and scholars have struggled to determine with any certainty the origins and grounding of the doctrine and the limits it places on states with regards to public trust lands. This uncertainty poses a barrier to wind energy developers, leaving projects open to legal challenges and, even if public trust scrutiny is overcome, significant delays. This article examines the general principles of the public trust doctrine and analyzes the public trust doctrine in each of the eight Great Lakes states. While the uncertainties and ambiguity of the doctrine cannot be resolved, based on this review there are two common exceptions that minimize public trust concerns and may allow private developments on public trust lands: (1) control or title remaining with the public; and (2) promotion of the public interest. This article argues that there is an opportunity to construct an international agreement between the United States and Canada, and a subsequent interstate compact between the eight Great Lakes states, to establish a structure for offshore wind energy transactions in the Great Lakes and to emphasize the public benefit therein. Such agreements have the potential to mitigate public trust uncertainty and litigation risk on wind energy developers seeking to harness the wind potential of the Great Lakes.