‘Wind theft’ a looming issue for North Sea offshore windfarms

The Norwegian research used the Sørlige Nordsjø II (SN2) wind energy area offshore Norway as an case study. The area in question is in the Norwegian exclusive economic zone (EEZ) and borders the Danish EEZ.

Using state-of-the-art analysis data covering 1992 to 2020, they show that windfarm-induced wakes could propagate from SN2 into the Danish EEZ and vice versa.

“This is worrying, as the United Nations Law of the Sea Convention 1982 leaves a regulatory gap regarding wind theft,” the Norwegian researchers stated. “Europe needs to expand offshore renewable energy production and is working towards an objective of net-zero objectives by 2050. Coastal states need to co-operate to find regulatory solutions to wind theft such that wind resource management can be optimised.

“Although some North Sea coastal states have demonstrated a political will to co-operate it is crucial that such policies proliferate into legal instruments which lend certainty and predictability to wind resource management.”

Given that UNCLOS may be of limited assistance in the determination of how wind theft might be regulated, the researchers analysed whether wind resources can be regarded as a shared resource. “The analysis is pertinent,” they stated, “considering the regulation of shared resources compels certain obligations of co-operation, reflecting customary international law.

“The concept of shared natural resources stresses the need for co-operative management such that states are not deprived of an equitable share of the resource in question.” Highlighting examples where shared use of water resources have been addressed by states, they noted “although it may seem difficult to equate wind speed deficit with the notion of ‘theft,’ it may result in reduced access to an affected state‘s reasonable share of an otherwise undisturbed resource.

Where legal uncertainty has existed concerning natural resources straddling boundaries, states have often entered into provisional arrangements. Oil and gas resources have been exploited through joint development zones and co-operation between states often includes using best efforts to co-ordinate licensing procedures. Such an agreement allows developers to exploit a shared resource under a common framework.

“Anticipating and adopting laws which recognise wind theft as a phenomenon is crucial to allow for more effective deployment of offshore windfarms in the North Sea,” the paper concluded. “Whether such preventative measures adopted in planning procedures result in co-ordination efforts and/or compensatory methods remains to be seen.

“We submit that North Sea states should be incentivised and encouraged to co-operate on a bilateral and multilateral basis where it is suspected that a proposed windfarm is likely to have transboundary effects in terms of wind theft.”

Finseraas, Eirik and Herrera Anchustegui, Ignacio and Cheynet, Etienne and Guillermo Gebhardt, Cristian and Reuder, Joachim, Gone with the Wind? Wind Farm-Induced Wakes and Regulatory Gaps (6 December 2022). Available at: SSRN: ssrn.com/abstract=4294614  or dx.doi.org/10.2139/ssrn.4294614.

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