June 4, 2021 — The Bureau of Ocean Energy Management (BOEM) does not need to conduct full environmental reviews under the National Environmental Policy Act (NEPA) when granting an offshore wind farm lease, the D.C. Circuit Court of Appeals has affirmed. The decision followed a lawsuit by commercial fishing organizations and seaside municipalities who claimed that BOEM violated NEPA and the Outer Continental Shelf Lands Act (OCSLA) when it auctioned an offshore lease to Equinor (formerly Statoil) without performing an environmental review of the anticipated windfarm project. The decision puts to rest the question of whether a mere lease sale may trigger extensive environmental review under NEPA, potentially streamlining the initial lease acquisition process, but also requiring the investment of significant funds before developers have cleared environmental review.
In Fisheries Survival Fund, et al. v. Sally Jewell, et al.,1 plaintiffs challenged BOEM’s issuance of the lease, arguing that it violated NEPA because it failed to analyze the environmental impacts of constructing and operating a wind energy facility. Leases for offshore energy projects proceed under different processes depending on whether BOEM or the developer proposes an area for lease. Either way, BOEM must consult with state task forces, other state and local representatives, and with representatives of Indian Tribes whose interests may be affected. Before issuing a lease, BOEM follows a four-step process, issuing a Call for Information and Nominations, completing the Area Identification process, publishing a Proposed Sale Notice, and publishing a Final Sale Notice.
Here, BOEM published an environmental assessment at the same time it published the Proposed Sale Notice for the wind energy lease at issue. The environmental assessment found that the reasonably foreseeable impacts of the lease sale would not significantly impact the environment. Plaintiffs argued that that more extensive environmental review was required, not just of the lease itself but of the full impacts of the anticipated wind farm, alleging that BOEM violated NEPA by failing to perform this more extensive review. BOEM maintained throughout the litigation that additional analysis and environmental review under NEPA was not required until Equinor conducted a site assessment and proposed a construction and operations plan for the wind energy facility.