Update (11/4/08) - Here's a link to a Report by the Congressional Research Service evaluating the MMS and FERC regulatory systems.
As I remember, the provisions of the Energy Policy Act of 2005, which authorized the Mineral Management Service to lease property on the Outer Continental Shelf (OCS) for alternative energy projects, were intended to clarify who's the boss on the Outer Continental Shelf. Before EPAct of 2005, it wasn't one hundred percent clear how companies like Cape Windcould acquire definitive property rights for siting projects on the OCS and the new law closed that gap.
Except...in closing one gap, EPAct 2005 created another question about which agency, FERC or MMS (or both) have the power to authorize wave or tidal projects on the OCS. Without any further guidance from Congress, FERC and MMS have been duking it out ever since. Now, FERC has upped the ante even further, with this recent Order, staking claim to the entire Outer Continental Shelf, where previously, it was willing to settle for a mere twelve miles. So how does FERC's reasoning stack up in this decision? Read on after the jump...