MMS-FERC Jurisdictional Dispute Continues

In an order issued in October 2008 , FERC upped the ante in the ongoing dispute with MMS over which agency has jurisdiction over marine renewables projects on the Outer Continental Shelf.  FERC claims authority to license marine renewables projects under the Federal Power Act (FPA), but acknowledges that developers will still need to obtain a lease from MMS to secure the property rights to site a marine renewables project required by the FPA and terms of a license. MMS, by contrast, takes the position that it has exclusive authority over marine renewables projects on the OCS , and that FERC’s regulatory jurisdiction does not extend beyond the traditional three mile limits of navigable waters as used in many federal statutes. If you’re interested, I’ve analyzed the jurisdictional dispute between FERC and MMS in excruciating detail at my blog, Renewables Offshore.

Efforts to resolve the FERC-MMS dispute, including an MOU between the agencies and mediation by the Department of Justice, have apparently both failed. The possibility of resolving the dispute through an Executive Order (EO) has been suggested by some groups, however, because FERC is an independent and not an executive agency, an EO would not bind it. Unless a new administration results in a change in FERC or MMS positions, Congressional intervention may offer the only viable option to resolve the stalemate.