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Legal Fight in New York Offshore Wind Farm Case Continues on Merits; Request for Preliminary Injunction Denied

WASHINGTON — February 16, 2017 — The following was released by the Fisheries Survival Fund:

The U.S. District Court for the District of Columbia decided late Wednesday not to grant a preliminary injunction in the lawsuit brought by a host of fishing communities, associations and businesses—led by scallop industry trade group the Fisheries Survival Fund—against the impending leasing of the New York Wind Energy Area to Statoil Wind of Norway. The suit alleges the U.S. Bureau of Ocean Energy Management (BOEM) leasing process did not adequately consider the impact of wind power development in the waters off Long Island, New York on the region’s fishermen.

The fishing industry asked that the court temporarily halt BOEM from proceeding with the final ratification of a lease on the area, which was preliminarily awarded to Statoil, Norway’s state oil company, for $42.5 million.

“Getting a preliminary injunction granted is difficult, given the high standards that the court applies,” said Mayor Kirk Larson of Barnegat Light, N.J., one of the plaintiffs in the case. “But our case will continue, and we are confident that we will succeed on the merits.”

The ruling explained that a preliminary injunction is an extraordinary and drastic remedy, that the standard for proving irreparable harm is “particularly high” in the D.C. Circuit, and that plaintiffs must prove that their injuries are “certain, great, actual and imminent.”

However, the court remarked that it “maintains its authority to ultimately enjoin the lease in this litigation if necessary,” and noted that Statoil is aware that its proposals for the wind farm may be rejected and that it may never construct or operate such a facility.

“While the court didn’t find that the issuance of this lease would cause immediate and irreparable harm to fishermen, it remains true that the ultimate construction and operation of a wind farm will have devastating effects on our industry, the environment, and marine resources,” said Bonnie Brady, executive director of the Long Island Commercial Fishing Association in Montauk, N.Y., another plaintiff in the case. “We have made it clear to the government and Statoil that fishermen will not be ignored in this debate.”

The ruling stated that the fishing industry offered numerous arguments for why the environmental analyses prepared by BOEM were defective, and in violation of the agency’s statutory and regulatory requirements, including that it failed to analyze the actual construction and operation of a wind facility and further failed to consider other potential locations for the wind facility.

The court also noted that when the draft environmental assessment was published in the Federal Register for public comment in June 2016, many members of the fishing industry submitted comments about how a wind facility in the proposed lease location would harm their fishing interests and the marine habitat in that area.

BOEM had argued that the proper time to assess environmental impacts of construction is years from now, after a Construction and Operations Plan is approved, but the court cited precedent in the D.C. circuit that suggests the proper time for the agency to consider these environmental impacts may be “at the present stage.”

The ruling also looked at the balance between the interests of each side. The government argued that the public interest supported its wind energy leasing program, and the financial interest in the lease, while the fishing industry argued that the public interest is best served by allowing the industry to continuing commercial fishing activity. The court found that the balance did not favor either side.

“The fishing industry and the public already have a vested interest in these areas,” said Meghan Lapp, Fisheries Liaison for Seafreeze Ltd. in Point Judith, R.I., which is also a plaintiff in the case. “This will have a significant negative impact on the squid industry and the state of Rhode Island, which lands more calamari than all other East Coast states combined. BOEM can not be allowed to ignore American small businesses and the American people.”

Read the court’s decision at Saving Seafood

Attorneys for Fishing Industry in Wind Farm Lawsuit Discuss Case on New Bedford Radio

February 14, 2017 (Saving Seafood)– On Monday, attorneys representing the plaintiffs in the lawsuit against a proposed wind farm off the coast of Long Island discussed the case with WBSM New Bedford host Phil Paleologos. The attorneys, David Frulla and Andrew Minkiewicz, represent a group of fishing businesses, associations, and municipalities, led by the Fisheries Survival Fund, a scallop industry trade group.

The lawsuit alleges that the Bureau of Ocean Energy Management (BOEM) did not properly consider the impact the proposed wind far would have on area fisheries when they awarded a multi-million dollar wind energy lease to Statoil, a Norwegian oil company. The proposed wind farm would occupy some of the most important fishing grounds in the Atlantic, potentially causing serious harm to local fisheries.

Listen to the full interview here

FISHING GROUPS, TOWNS SUE TO BLOCK OFFSHORE WINDFARM

February 10, 2017 — Commercial fishing companies, trade groups, and seaport communities in four states are fighting against the development of a massive offshore windfarm planned to be built in the Atlantic Ocean.

The group is requesting courts block the U.S. Department of the Interior’s Bureau of Ocean Energy Management (BOEM) from auctioning the rights to develop the project. The coalition, which includes the cities of Narragansett, Rhode Island and New Bedford, Massachusetts, filed a petition to block the lease in federal court in Washington, DC in early December 2016, arguing BOEM offered the lease without adequately considering the harm to the fishermen who have traditionally worked the area for scallops and squid.

On December 16, the court provisionally allowed the auction to proceed. Norwegian state-owned oil company Statoil won, paying approximately $42.5 million for the right to build a wind farm with as many as 194 turbines across nearly 80,000 acres in the ocean off the coasts of New Jersey and New York.

The group amended its lawsuit, asking the court to provide a temporary restraining order and preliminary injunction to prevent BOEM taking the necessary next step with the provisional lease. The court agreed to consider the motion, setting February 8, 2017, as the date to hear the plaintiffs’ arguments.

Read the full story at The Heartland Institute

Commercial Fishing Interests Fight New York Offshore Wind Project In U.S. District Court

Heat map of scallop fishing effort in the area around the proposed New York wind energy area. The proposed wind energy area is in blue.

WASHINGTON (Saving Seafood) – February 9, 2017 – Lawyers representing a host of fishing communities, associations, and businesses, led by scallop industry trade group the Fisheries Survival Fund, argued in U.S. District Court in Washington, D.C., yesterday against the lease sale of 127 square miles of ocean off the coast of Long Island for wind energy development. A ruling is expected in the coming days.

The plaintiffs are seeking a preliminary injunction against the wind farm lease, which the Bureau of Ocean Energy Management (BOEM) preliminarily awarded to Norwegian oil and gas company Statoil for $42.5 million at auction in December, arguing that the site of the project is in the middle of important fishing grounds, particularly for the valuable scallop and squid fisheries. They claim that allowing the lease sale to go through would cause irreparable harm to commercial fishermen and is unlawful.

The plaintiffs argued that the lease sale would have an immediate impact on fishing interests by giving the government and Statoil free rein to conduct a number of harmful actions, including installing a meteorological tower that could damage scallop beds, and performing sonic testing that studies suggest hurts fish populations. The plaintiffs also said that, should the lease proceed, additional investments make it nearly certain that a wind farm will be constructed, permanently restricting fishermen who make their livelihoods in the area.

Lawyers representing BOEM and Statoil countered that the plaintiffs failed to demonstrate immediate and irreparable harm to their livelihoods, saying that any impact on fishermen would not happen for years, and that there would be time to address fishing concerns in future environmental assessments.

Federal law requires a balanced process that considers all stakeholders when developing wind energy projects, but the plaintiffs said that fishing concerns have not been properly addressed in the siting of the New York wind energy area.

BOEM estimates the value of fishing grounds in the proposed wind energy area at $90 million, a figure that the plaintiffs argued is too low because the government used less precise vessel trip reports instead of more accurate satellite-based vessel monitoring systems. The defendants argued that the lease siting process was transparent, including meetings with fishermen and multiple requests for information.

The plaintiffs responded that their more accurate information was ignored, the location of the wind farm was chosen in private, and fishermen never had a chance to advocate for alternative sites.

The plaintiffs maintained that their complaint was not against wind energy as a whole, pointing out that Mayor Jon Mitchell of New Bedford, Mass., a plaintiff in the case, has been an outspoken proponent of wind energy development. Specifically, they are challenging the use of the unsolicited bid process that allows private entities to claim part of the ocean for wind energy development.

The plaintiffs in the case are the Fisheries Survival Fund, the Garden State Seafood Association, the Long Island Commercial Fishing Association, the Narragansett Chamber of Commerce, the Fishermen’s Dock Cooperative, the Rhode Island Fishermen’s Alliance, the City of New Bedford, Mass., the Borough of Barnegat Light, N.J., the Town of Narragansett, R.I., SeaFreeze Shoreside, Sea Fresh USA, and the Town Dock. The case was heard by Judge Tanya S. Chutkan.

New Jersey wind farm bid awarded to Norwegian company

December 19, 2016 — A Norwegian energy company that operates in 36 countries was the provisional winner Friday of an auction for the lease rights to build a wind farm off the coast of Sandy Hook.

Statoil, which operates many oil and gas fields on the Norwegian continental shelf, bid $42.5 million to lease nearly 80,000 acres of the Atlantic Ocean seafloor about 18 miles southeast of Sandy Hook and 12.5 miles south of Long Beach, on Long Island.

The online auction, held by the federal Bureau of Ocean Energy Management, started with six bidders, and lasted for 33 rounds before Statoil emerged victorious.

The auction came just a year after the Obama administration awarded leases to two companies to build wind farms off the southern coast of New Jersey. On Monday, the first offshore wind farm in the country started operating off Block Island in Rhode Island. The 30-megawatt farm was built by Deepwater Wind.

“This auction underscores the growing market demand for renewable energy among our coastal communities,” said Sally Jewell, U.S. secretary of the interior. She called the auction “another milestone for the U.S. offshore wind energy program.”

The agency already conducted a study to determine the visual impact of a hypothetical wind farm in the area to be leased. The simulation shows how a wind farm would look from Fire Island and Jones Beach on the Long Island coast, as well as from Sandy Hook and Asbury Park along the New Jersey coast.

From Sandy Hook and Asbury Park, a wind farm would appear as a series of tiny white dots on the horizon — barely visible. The simulations can be viewed online here.

Lawsuit fighting plan

This month a coalition of shore communities and fishing groups in four states had filed a petition asking a federal court to stop the auction, saying the area included in the lease is vital to commercial and recreational fishermen who catch everything from squid and scallops to flounder and sea bass.

An agreement was reached to allow the auction to proceed, but the lease will not be final until several other steps take place and the court can consider the fishing groups’ complaints.

The lead plaintiff is the Fisheries Survival Fund, which represents the Atlantic scallop industry. Other plaintiffs include the borough of Barnegat Light, the Garden State Seafood Association and the Fishermen’s Dock Co-operative. A hearing is scheduled for Feb. 8.

The plaintiffs argued that the federal government didn’t consider the effect on the region’s fishermen of leasing the triangular area, which includes documented squid and scallop fishing grounds.

The area actually auctioned Friday is slightly smaller than originally intended, as a way to exclude an environmentally sensitive section of seafloor known as the Cholera Bank, which has an irregular bottom that attracts an abundance of sea life. As a result, it has long been a favorite spot for fishermen to gather year-round.

Read the full story at The Record

Alternative Energy Collides With Fishermen’s Livelihood Off Long Island

December 15, 2016 — The following is excerpted from an article published in the Wall Street Journal yesterday. It was written by Joseph De Avila:

The federal government on Thursday plans to auction off a parcel of 79,000 acres in the Atlantic Ocean just south of Long Island to build a wind farm over fishing grounds that scallop and squid fishermen say are vital to their trade.

Bidders hope to secure a 25-year lease to operate a wind farm, to sell the electricity to energy-hungry Long Island and the New York City region. Offshore wind is a big part of Governor Andrew Cuomo’s plan for New York to get half of its energy from alternative sources by 2030.

But the commercial fishing industry opposes building wind turbines on this particular stretch of the Atlantic Ocean, which is sandwiched between shipping lanes into and out of the New York harbor. “We are very afraid we are going to lock up an area of the bottom that is definitely favorable for scallop settlement,” said James Gutowski, a scallop fisherman from Barnegat Light, N.J., and chairman of the Fisheries Survival Fund.

Members of the fishing industry say the Bureau of Ocean Energy Management didn’t adequately consider what the impact would have on scallop and squid fishing grounds. The Fisheries Survival Fund and other members of the fishing industry filed a lawsuit last Thursday in a Washington, D.C., federal court seeking an injunction to block the lease from going into effect.

The Bureau of Ocean Energy Management has already removed about 1,780 acres from the lease area after the National Marine Fisheries Service flagged that parcel as a sensitive habitat and a prime commercial fishing spot.

The bureau also has awarded 11 offshore wind leases so far, including sites off Massachusetts, Delaware and Virginia. The developers for each of those projects are currently conducting site assessments, according to the bureau, which declined to comment on the lawsuit. A hearing is set for February. Other plaintiffs include the Garden State Seafood Association and the Long Island Commercial Fishing Association.

Offshore-wind developer Deepwater Wind, based in Rhode Island, began operating the first offshore wind farm in the U.S. on Monday off Block Island, R.I., near the tip of Montauk. It also has a site located between Montauk and Martha’s Vineyard, Mass., that it plans to build in phases. The first phase could begin construction in 2019 and would provide enough energy for more than 50,000 homes for Long Island’s South Fork.

A 2011 plan for the strip of the Atlantic Ocean, located about 11.5 miles from Jones Beach, called for building 194 turbines that would generate enough electricity to power 245,000 homes. But today’s improved wind technology could generate even more power, according to the U.S. Bureau of Ocean Energy Management, which is managing the auction. “There is significant market demand” in the region, said Tracey Blythe Moriarty, a bureau spokeswoman.

Some 14 organizations have qualified to bid during Thursday’s auction, including the New York State Energy Research and Development Authority, or NYSERDA. The authority is the first state entity to participate in a federal offshore wind auction, according to the Bureau of Ocean Energy Management.

Read the full story at The Wall Street Journal

Legal Proceedings Preserve Fishing Industry Rights as New York Wind Energy Lease Sale Proceeds

December 15, 2016 — The following was released by the Fisheries Survival Fund:

Last week, a group of fisheries organizations, communities and businesses filed suit against the Bureau of Ocean Energy Management (BOEM), seeking a temporary restraining order to delay today’s auction of leasing rights to the proposed New York Wind Energy Area. The suit also sought a preliminary injunction to prevent BOEM from executing any resulting wind energy lease.

The plaintiffs allege that BOEM did not adequately consider the effect on the region’s fishermen of a 127-square-mile wind farm off the coast of New York and New Jersey.

Subsequently, a scheduling agreement was reached between the parties that allows the court to take adequate time to deliberate carefully on the case’s important issues. The plaintiffs agreed to withdraw their motion for a temporary restraining order that would have delayed the scheduled auction. Although the auction is proceeding today, under BOEM’s final sale notice for the auction, the lease will not be final until further steps, as outlined in the sale notice, are completed.

On Monday, Judge Tanya Chutkan of the United States District Court for the District of Columbia set a court schedule on the plaintiffs’ motion to preliminarily enjoin BOEM’s execution of any lease resulting from today’s auction. The schedule concludes with a hearing in Federal court on February 8.

Under Judge Chutkan’s order, if the lease is ready to be executed before the court is able to rule on the plaintiffs’ preliminary injunction motion, BOEM must provide the court no less than 14 days notice. If that notice is provided, the preliminary injunction proceedings will be expedited.

The Fisheries Survival Fund, representing the majority of the U.S. Atlantic scallop industry, is the lead plaintiff in the case. The lease area includes documented scallop and squid fishing grounds, which serve as essential fish habitat and grounds for other commercially important species, including black sea bass and summer flounder. It is also an important foraging area for threatened loggerhead sea turtles and critically endangered North Atlantic right whales.

Other organizations joining as plaintiffs include the Garden State Seafood Association and the Fishermen’s Dock Co-Operative in New Jersey; the Long Island Commercial Fishing Association in New York; and the Narragansett Chamber of Commerce and Rhode Island Fishermen’s Alliance.

Joining as plaintiffs are the City of New Bedford, Mass.; the Borough of Barnegat Light, N.J.; and the Town of Narragansett, R.I.

Also joining are three fishing businesses: SeaFreeze Shoreside, Sea Fresh USA and The Town Dock.

Proposed Atlantic wind energy lease auction to proceed

December 13th, 2016 — The federal government’s plan to auction the development rights to a huge offshore windfarm in the Atlantic Ocean between New York and New Jersey will proceed Thursday.

Groups representing the fishing industry in four states sought to delay the auction. But an agreement between the groups and the Bureau of Ocean Energy Management will allow it to proceed.

A lawyer for the fishing groups says they still will be able to seek a halt to the final sale during a federal court proceeding now scheduled for Feb. 8, 2017.

Andrew Minkiewicz says the delay gives both sides more time to submit documents. A judge in Washington, D.C., agreed to the plan Monday.

The groups, including scallop fishermen, claim the 127-square-mile project would harm their business.

A BOEM spokeswoman declined comment.

Read the full story from the Associated Press at the New Jersey Herald

Commercial fishermen ask court to block NY offshore wind energy lease

December 12, 2016 — Commercial fishing industry groups are asking a federal court to delay a planned Dec. 15 federal lease auction of 127 sq. mi. of seafloor off New York for wind energy development.

Led by the Fisheries Survival Fund, representing the East Coast sea scallop fleet, the organizations – joined by coastal towns where fishing is a major employer – seek an injunction against U.S. Interior Secretary Sally Jewell and the Bureau of Ocean Energy Management.

The move comes after months of circling by BOEM and commercial fishing interests from Massachusetts and New Jersey – including the prosperous sea scallop industry, which has enjoyed historic abundance and high prices for the shellfish. They fishermen were joined in the action by Narragansett, R.I., New Bedford, Mass., and Barnegat Light, N.J., where fishing provides good employment.

In their complaint, the critics say BOEM “grossly underestimated” the level of fishing activity in the proposed New York Wind Energy Area, a shortcoming industry advocates tried to remedy by providing tracking data from boats towing for scallops and squid.

Fishermen say the results show “spaghetti tracks” demonstrating that proposed lease areas are important fish habitat and seafood sources. In court papers, captain James Lovgren from the Fishermen’s Dock Cooperative in Point Pleasant Beach, N.J., recounted bringing plotter data to BOEM that showed “the proposed windmill site was completely covered by track marks from the vessels.”

Lovgren says he and other fishermen were not notified of subsequent public listening sessions held by BOEM, despite having provided their contact information.

Read the full story at WorkBoat

NEW BEDFORD STANDARD-TIMES: The long view on offshore wind

December 12, 2016 — A consortium of entities with fishing interests – including the City of New Bedford – aims to block Thursday’s auction for wind rights in the ocean off of Long Island, claiming the fishing industry hasn’t had a full seat at the table.

One can readily see the value in the Edison’s saying above by comparing how the steadily advancing offshore wind industry has been greeted by fishing interests in New York and Massachusetts. While the federal government has been less than perfect in its consideration of Northeast fishing resources – see the recent ocean monument designations as an example where fishing interests’ reasonable options were ignored to the detriment of future harvests – the auctions that produced three leases for wind farms off the Massachusetts coast demonstrated effective outreach from the Bureau of Ocean Energy Management to fishermen. As a result, Massachusetts sits prepared, ready to answer when opportunity knocks, and New York is on tenterhooks.

This example illustrates the strategic commitment made in the Bay State and that has been broadly demonstrated regarding offshore wind. From academics and job training, to infrastructure and research, the coordination being described by varied activities should be cause for patient, measured optimism here.

Business and political leaders here have recognized that there are numerous assets waiting to be plugged in to the massive system required to support a mature and significant offshore wind industry. They have so far been patient enough to develop synergies organically.

Workforce development has begun with wind-specific programs in Bristol Community College and UMass Dartmouth, and at UMass Amherst, where wind energy research and development were born in 1971. The industry will benefit from the theoretical in Amherst to the most practical at UMass Dartmouth, where graduate programs in environmental policy and law help the legal framework to evolve, and where the rapidly expanding School of Marine Science and Technology provides unique, invaluable expertise on the geology and biology where turbines will be installed, in its backyard, so to speak.

Similarly, improvements to railways into New Bedford and assessments of waterfront land use will pay off as state assets like New Bedford’s South Terminal and the Charlestown blade testing facility become more and more useful.

Read the full editorial at the New Bedford Standard-Times