Offshore energy is the future – and it is already here
By Pablo Ruan Siqueira Lopes, Law student at the State University of Paraíba; member of the Center of Studies in The Law of The Sea ‘Vicente Marotta Rangel’, at the University of São Paulo; and intern at BILOS.
News supervised by Fabiana Ventura Piassi.
At Brazil National Congress, the Law Project (LP) number 576/2021 is being developmented by Senator Jean Paul Prates (Workers Party), which regulates the use of the offshore energy potential in Brazil, whether it be wind, solar or tidal. The LP defines offshore as the “area of the Territorial Sea, the Continental Shelf, the Exclusive Economic Zone (EEZ) or another body of water under Brazil domain”.
Offshore installations are those floating (at rest permanently), or those fixed (installed in the water bed). In the case of wind energy, for example, there is the possibility of using taller towers with greater production capacity than those needed on land.
The first test turbines in the world were installed in the seas of Europe in the 1990s. In United Kingdom, the offshore wind sector generated enough electricity for 39% of households in 2020, compared to 30% in 2019, in a country that does not have a range of appropriate and available locations on land. Last year, european countries built 2.9 GW of energy produced from the wind at sea, increasing the continent’s total installed capacity to 25 GW. Thus, they expect to reach 300 GW by 2050.
Denmark, for example, is one of the European Union’s largest oil producers, but that country has approved a plan to build an artificial island in the North Sea and use it as a clean energy center. The island will provide energy for homes and green hydrogen for use in ships, aviation, industry and heavy transport. This decision is in line with the European Union (EU) plans to transform the group’s electricity supply. Location helps: water levels around the Danish coast are low, making it easier and cheaper to build wind farms on the ocean. Germany, The Netherlands and Belgium also stand out in the offshore field.
In Brazil, according to Senator Prates, the lack of a regulatory framework on the activity represents an obstacle to attracting investments in the sector. Today, this energy has higher costs than other renewable sources. Nevertheless, the potential for cost reduction can be achieved through long-term public policies, such as those that were carried out since the 1973 oil crisis, which culminated in a noticeable state investment in renewable energies.
Under the perspective of the United Nations Convention on the Law of the Sea (UNCLOS), when it comes to space at the limits of the territorial sea, sovereignty is fully exercised, with the exception of innocent passage, and the coastal state must reconcile security navigation with offshore wind energy production in its territorial sea. The installation, production and removal of structures with wind turbines at sea and in the ocean depends on the political will of the coastal state.
The technology for installing offshore wind energy beyond the territorial sea is on the rise: wind farms have moved further away from the coast and into deeper waters. The installation and production of offshore parks in the exclusive economic zone is also a right of the coastal state. Some countries adopt objective public processes with competitive selection criteria for the occupation of areas located in their respective exclusive economic zones. LP 576/2021 provides that the authorization to use Union assets for offshore energy generation may be granted in accordance with the planned grant (exploration of a generating plant in prisms delimited by the granting authority according to the spatial planning of the competent body, offered through a public selection process) or according to the independent grant (exploration of a generating plant in prisms suggested by interested parties, except for public consultation). The LP establishes, in addition to the definition of offshore, the definitions of energy prism and decommissioning.
Offshore parks fall into the category of facilities or structures for economic purposes provided for in article 60 of UNCLOS, which makes reference to facilities and structures for the purposes designated in article 56, such as those used for the production of energy from water, currents and winds.
UNCLOS Article 60 provides for safety zones around offshore structures, which are spaces created as a security measure for navigation and for installations or structures at sea. The distance between each wind turbine can be more than 1 kilometer, generating a passage between them, which compromises the safety of navigation. The Belgian legislation – article 3 of the Arrêté Royal of April 11, 2012 – provides for the creation of a 500-meter security zone from each point on the outer border of the entire installations or structures for the production of energy from the water, currents and winds. LP 576 does not refer to safety zones, but it prohibits the constitution of energy sources in areas coinciding with the maritime navigation routes.
In security zones, it is the coastal State that must take appropriate measures to ensure the safety of navigation and of the energy production installation or structure itself. UNCLOS foresees the obligation to remove abandoned or deactivated facilities and structures, as well as their advertising. The establishment of offshore facilities and structures, and their safety zone, is prohibited when it interferes with the use of “recognized sea routes essential for international navigation”. We can infer that such circulation routes comprise the circulation routes and the traffic separation devices thus established, in view of the IMO recommendations, and those indicated in the public maritime charts.
Brazil enjoys all the prerogatives for the sovereign exercise of granting the installation and production of offshore energy in its territorial sea and in its exclusive economic zone. Proper regulation of the issue by the country means legal certainty for investors, and provides for limits to their actions. It is noted that the growing demand for the use of the seas and oceans by various sectors of the economy generates a conflict of interest between fishing, the shipping industry, tourism, protection of the marine environment, renewable marine energies, the oil industry, the installation of submarine cables and the exploitation of marine resources. They are legitimate discussions of the decade of the oceans: offshore energy proves to be another important path in guaranteeing an ecologically balanced environment, provided that the proper measures for its safe implementation are respected. However, there is still a long way to go in terms of its regulation.
 This Law Project can be accessed here: https://www25.senado.leg.br/web/atividade/materias/-/materia/146793
 Available on: https://eco.sapo.pt/2021/02/08/europa-investe-recorde-de-26-mil-milhoes-em-energia-eolica-offshore-em-2020/#:~:text=No%20ano%20passado%2C%20os%20pa%C3%ADses,aos%20300%20GW%20at%C3%A9%202050.&text=%E2%80%9C26%20mil%20milh%C3%B5es%20em%20novos,confian%C3%A7a%20na%20energia%20e%C3%B3lica%20offshore.
 Cavalcante, M.M & Mont’Alverne, T. C. F. “A inclusão da energia eólica offshore na gestão dos espaços marinhos”. Available on: http://repositorio.ufc.br/bitstream/riufc/54955/1/2016_capliv_tcfMont%27Alverne.pdf