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Fishing Groups and Communities Move Forward with Suit Against NY Wind Farm

WASHINGTON — September 19, 2017 — The following was released by the Fisheries Survival Fund:

A group of fishing organizations, businesses, and communities, led by the Fisheries Survival Fund (FSF), has moved forward with its lawsuit to halt the leasing of a planned wind farm off the coast of New York. The suit, filed against the Department of the Interior’s Bureau of Ocean Energy Management (BOEM), is seeking summary judgment and requesting the court to invalidate the lease, which was awarded to the Norwegian firm Statoil to develop the New York Wind Energy Area (NY WEA).

BOEM’s process for awarding the lease failed to properly consider the planned wind farm’s impact on area fish populations and habitats, shoreside communities, safety, and navigation. This violates the National Environmental Policy Act (NEPA), which requires an assessment of these impacts before issuing the lease, in conjunction with a full Environmental Impact Statement and an evaluation of alternative locations for any proposal.

BOEM’s failure to consider the impacts to fisheries, safety, navigation and other natural resources in the NY WEA prior to moving forward with the leasing process also violates the Outer Continental Shelf Lands Act (OCSLA), which charges BOEM with considering and providing for existing ocean users. And BOEM’s actions violate the Administrative Procedure Act, which prohibits agencies from acting in ways that are arbitrary, capricious, and contrary to law.

The site for the proposed wind farm includes key scallop, squid, and other Atlantic fishing grounds, as well as ocean habitats that are crucial for species such as loggerhead sea turtles, right whales, black sea bass and summer flounder. Because of how BOEM’s leasing process unfolds, the wind farm’s expected impacts on natural resources and those who rely on them will not be examined until the project is nearing completion.

“The plaintiffs in this case believe sensible wind energy development and fishing can co-exist,” said David Frulla, who is representing FSF and the other plaintiffs in the case. “But any offshore energy project must first meaningfully consider the impact on the habitats, marine species, and economic interests that may be harmed before selecting a wind farm site and issuing a lease to a private developer.”

FSF and the other plaintiffs sought a preliminary injunction against the $42.5 million lease before it was awarded in December 2016. While the judge presiding over the case stated that “the proper time for the agency to consider these environmental impacts may be at the present stage,” the request for a preliminary injunction was denied, as the judge did not believe it met the high standard of causing immediate harm that could not later be undone by a subsequent decision on the lease.

Following the plaintiffs’ filing last week, the federal government and Statoil are due to file their own cross-motions for summary judgment, and responses to the plaintiffs’ brief, in the coming months. The U.S. District Court for the District of Columbia will then make a decision on the merits.

The Fisheries Survival Fund is the lead plaintiff in the case. The organizations and businesses that have joined the suit are 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, Rhode Island Fishermen’s Alliance, SeaFreeze Shoreside, Sea Fresh USA, and The Town Dock in Rhode Island.

Municipalities that have joined the suit are the City of New Bedford, Mass.; the Borough of Barnegat Light, N.J.; and the Town of Narragansett, R.I.

North Carolina submits formal comments in opposition to offshore drilling

August 21, 2017 — Gov. Roy Cooper and the Department of Environmental Quality submitted formal comments yesterday to the U.S. Bureau of Ocean Energy Management to convey North Carolina’s opposition to oil and gas leasing for offshore drilling on North Carolina’s coast.

“Because offshore drilling threatens North Carolina’s critical coastal industries and unique coastal environment with limited benefits for our citizens, it is a bad deal for North Carolina,” Cooper wrote in the letter. “Accordingly, I ask that you respect the wishes of our state and maintain in the new OCS Leasing Plan the current prohibition of oil and gas drilling off North Carolina’s coast.”

Coastal tourism generates $3 billion annually in North Carolina and supports more than 30,000 jobs in the eastern part of the state. Commercial fishing also brings in hundreds of millions of dollars to the state every year.

Read the full story at Island Free Press

Cape May County Chamber Applauds Governor’s Opposition to Offshore Oil Drilling Plan

August 17, 2017 — CAPE MAY, N.J. — The Cape May County Chamber of Commerce applauds the Christie Administration for its statement opposing offshore exploration and development of oil and natural gas resources off the coast of New Jersey or any area of the Atlantic that could adversely affect our pristine coastal communities, fishing estuaries and vibrant tourism economy.

The Cape May County Chamber of Commerce in partnership with Clean Ocean Action and the Jersey Shore Partnership, along with other concerned organizations, encouraged Governor Christie to issue this statement before the Aug. 17 deadline to submit comments to the Bureau of Ocean Energy Management (BOEM).

Read the full story at the Cape May County Herald

Final Supplemental Environmental Impact Statement for the Cape Wind Energy Project

August 7, 2017 — On Friday, the Interior Department’s Bureau of Ocean Energy Management (BOEM) issued its final supplemental environmental impact statement (EIS) on the 468-megawatt Cape Wind project. In July of last year, an appeals court held that the agency should have used better data to determine the conditions of the seafloor for the project before issuing a lease. The final EIS states that the additional data it gathered does not change its prior finding that drilling foundations for the project in the seabed would only temporarily disturb sedimentation, and the overall impacts to water quality would be minor. The Cape Wind project is on hold after it missed a financing deadline, which led National Grid and NStar (now Eversource) to cancel contracts to buy power from it:

BOEM is announcing the availability of the Final Supplemental Environmental Impact Statement (SEIS) for the Cape Wind Energy Project. This supplement to the 2009 Final EIS has been prepared in response to a 2016 remand order of the U.S. Court of Appeals for the District of Columbia Circuit in Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016).

The Final SEIS is available for review on the BOEM website at: https://www.boem.gov/Massachusetts-Cape-Wind/.

In the Final SEIS for the Cape Wind Energy Project, BOEM examines the available geological survey data, including the geotechnical data and reports submitted to BOEM since the 2009 Final EIS, and any other relevant material that relate to the adequacy of the seafloor to support wind turbines in the lease area.

The Final SEIS also includes a summary of all the comments received on the Draft SEIS and BOEM’s responses to those comments.

Fisheries Service Hears Pros, Cons on Atlantic Seismic Surveys

July 27, 2017 — Five oil and gas service companies are awaiting decisions by the National Marine Fisheries Service on their proposals for Atlantic offshore seismic surveys that could harm whales and other marine life.

The service, which can issue authorizations under the Marine Mammal Protection Act, is reviewing a high volume of opposing and supporting public comments that were filed by the July 21 deadline.

The five companies are TGS NOPEC Geophysical Co. ASA, Spectrum ASA, ION Geophysical Corp., CGG S.A. and WesternGeco Ltd., a subsidiary of Schlumberger Ltd. A sixth company, TDI-Brooks International Inc., recently expressed an interest in restarting the application for an authorization after an earlier application was returned to the company as incomplete.

The fisheries service proposed authorizations with a variety of mitigation measures to reduce risks to marine mammals. If the authorizations are granted—with or without additional mitigation steps—the Bureau of Ocean Energy Management will be able to make final decisions on whether to issue one-year permits for the work.

The fisheries service has no deadline for its decisions. BOEM is expected to be able to act quickly if the service gives the green light.

Read the full story at Bloomberg BNA

Offshore wind faces serious legal test

May 15, 2017– OFFSHORE WIND’S BIGGEST HURDLE? Legal action from several cities, fisheries and fishery associations in New England, New York and New Jersey is threatening to delay the growth of the nascent offshore wind industry, Pro’s Esther Whieldon reports. The suit threatens to set back a clean energy industry that has found itself in the new administration’s good graces. Notwithstanding President Donald Trump’s past battles with offshore wind farms and his work to reverse Obama-era climate change policies, his administration has so far supported offshore wind projects. Of more than 14,000 megawatts of offshore wind power installed globally, just 30 megawatts are so far operating in the U.S., but wind developers are eager to grow that number. BOEM is considering additional lease sales in Massachusetts, New York, California, South Carolina and Hawaii.

A loss in the New York case “would likely delay the new American energy revolution by a couple years,” said Collin O’Mara, president and CEO of the National Wildlife Federation, a wind industry supporter. The U.S. District Court for D.C. in February rejected the fisheries’ request to put Statoil’s lease on hold, but a hearing has not been scheduled. Plaintiffs argue BOEM violated the National Environmental Policy Act by failing to adequately consider the effects of granting offshore wind leases on their businesses or to consider alternative sites. “They have offered no off-ramp, no way to avoid litigation in this matter because they never offered a process to discuss location,” Drew Minkiewicz, a partner at the firm Kelley Drye & Warren LLP, tells Esther.

Read the full story at Politico

Zinke Signs Offshore Energy Orders, Protesters March

May 2, 2017 — U.S. Secretary of the Department of the Interior Ryan Zinke signed two secretarial orders relating to offshore energy development at this week’s Offshore Technology Conference (#OTC2017) in Houston.

The first order, Secretarial Order 3550, implements President Donald Trump’s Executive Order signed last Friday and directs the Bureau of Ocean Energy Management (BOEM) to develop a new five-year plan for oil and gas exploration in offshore waters. The order calls for full consideration to be given to leasing the OCS offshore Alaska, mid- and south-Atlantic, and the Gulf of Mexico. It also directs BOEM to work with the Department of Commerce’s National Marine Fisheries Service to expedite authorization requests for seismic surveys, particularly for new or resubmitted permitting applications in the Atlantic to understand the extent of America’s energy potential.

The Secretary’s order directs prompt completion of the Notice to Lessees No. 2016-N01 dated September 12, 2016 and ceases all activities to promulgate the proposed “Offshore Air Quality Control, Reporting, and Compliance Rule.” It also directs BOEM and the Bureau of Safety and Environmental Enforcement (BSEE) to review a host of other rules and report progress within 21 days.

The second, Secretarial Order 3551, establishes a new position – Counselor to the Secretary for Energy Policy – to coordinate the Interior Department’s energy portfolio that spans nine of the Department’s ten bureaus.

Read the full story at The Maritime Executive

NEW YORK: With new interest in offshore wind, state agency re-calibrates strategy

March 17, 2017 — As a new proposal for an offshore wind project looks likely to trigger a federal auction for development rights, a state agency that was willing to spend big in a previous auction is rethinking its strategy.

German-based PNE has submitted plans for a 400 megawatt offshore wind farm off the coast of Fire Island. The project, submitted to the U.S. Bureau of Ocean Energy Management, would put as many as 50 turbines in the 40,000 acre area.

That’s likely to spark competitive bidding on the area, said Alliance for Clean Energy’s Anne Reynolds, and could move offshore wind along more quickly in New York.

But the New York State Energy and Research Development Authority may not be one of the bidders. The agency said in a statement it “may, but does not expect to” participate in future bidding.

“NYSERDA is executing a strategy to create competition for offtake agreements for areas that meet our standards and provide the best path to cost effectiveness for New York State consumers,” the agency said . “We look forward to working with any successful winning bidder to help us achieve these goals.”

Read the full story at Politico

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