First-Ever Legal Challenge Filed Against Proposed Federal Offshore Wind Lease Auction

A coalition of fishing advocates, local towns, and municipalities from New Jersey to Rhode Island has sued the U.S. Department of the Interior’s Bureau of Ocean Energy Management (BOEM) and sought a temporary restraining order and preliminary injunction to prevent it from issuing any competitive wind energy lease approximately 11 miles off the New York coast. Despite the years-long planning and consultation process BOEM undertook leading up to the anticipated sale – currently scheduled to take place on December 15, 2016 – Plaintiffs allege that BOEM failed to adequately solicit input from the fishing industry and other affected stakeholders regarding the suitability of the proposed site for wind development, and to identify potential alternative locations for leasing. This is the first legal challenge to an offshore wind energy lease sale by BOEM, and the outcome may have a lasting impact on the future of BOEM’s wind leasing program.

Plaintiffs allege that the National Environmental Policy Act (NEPA) requires BOEM to prepare a full environmental impact statement (EIS) considering the effects of the construction and operation of a potential wind project on the lease area prior to issuing a lease. In an earlier lawsuit involving the controversial Cape Wind project in Nantucket Sound, PEER v. Jewell, Civ. No. 10-1067 (D.D.C. 2011), and subsequently in the Secretary of the Interior’s “Smart from the Start” offshore wind energy leasing policy, BOEM explained that such robust analysis is not required for the simple act of issuing a lease, which confers no development rights. Instead, a full analysis in an EIS is required only when the agency considers whether to approve or disapprove a lessee’s proposed project, something that is not expected occur until years after a lease is issued. Until a project is proposed and approved, the only activities authorized on an offshore wind lease are site and biological surveys, which are used by the developer to inform any project proposal. BOEM has thus far relied on staged NEPA analysis to successfully award 11 commercial wind leases and intends to continue to do so as it expands its renewable leasing efforts.

Plaintiffs nevertheless insist that issuing a lease is tantamount to approving a project and that BOEM, therefore, must analyze the effects of a wind project – even if the project has not yet been conceived or presented – every time the agency issues a lease. Because the current BOEM lease issuance procedure is now a cornerstone of the U.S. offshore wind leasing and development process, a decision unfavorable to the government, in this case, has the potential to derail this nascent industry and could jeopardize other offshore wind leases. Indeed, the claimed relief seeks to vacate the entire “Smart From the Start” offshore wind leasing program.