Saving Seafood

D.C. Circuit Affirms that Offshore Wind Lease Does Not Trigger NEPA Review

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.

Read the full story at The National Law Review

Nation’s Fishery Councils Recommend Ways to Support American Seafood, Improve Coordination with NMFS

September 30, 2020 — An executive order, changes to National Environmental Policy Act measures, guidance related to overfishing and a National Seafood Council were among several issues fishery leaders from around the country discussed last week. The biannual meeting of the Council Coordination Committee was held virtually, but hosted by Western Pacific Regional Fishery Management Council.

Leaders from all eight regional councils had the opportunity to talk with National Marine Fisheries Service managers during the open public meeting.

Read the full story at Seafood News

ANDY SABIN: The conservative case against developing Alaska’s Pebble Mine

August 28, 2020 — The U.S. Army Corps of Engineers this week warned that the proposed Pebble project — a vast gold and copper mine near the headwaters of Alaska’s Bristol Bay — was impossible to build without causing significant damage to the region’s pristine waters and salmon fishery.

The Corps stopped short of halting the mine but found the developer, the Pebble Limited Partnership, was unlikely to meet the level of mitigation that would be required under the Clean Water Act to offset the impact on wetlands.

The Trump administration has now done what the previous administration would not — it gave the proposed Pebble project full consideration under the National Environmental Policy Act (NEPA). While the previous administration pre-judged the project with an unprecedented preemptive veto, the Trump U.S. Army Corps of Engineers and all cooperating agencies have given it a full review.

It is time for President Donald Trump to be the decider. Given an already strong conservation record, President Trump should instruct his agencies to declare the Pebble project unworkable. 

I am a miner and a fisherman. I am also a dedicated conservationist who believes that we have a duty as conservatives to leave this great land better than we found it. I am also a staunch supporter of the president and his policies.

Read the full story at The Hill

Cape May Fishermen, Processor Sues NOAA’s At-Sea Monitoring Rule

February 21, 2020 — Cause of Action Institute, on behalf of six trawlers and a processor based in Cape May, NJ, filed a lawsuit yesterday against Secretary of Commerce Wilbur Ross and NOAA Fisheries to block a new rule forcing them to pay for third-party “at-sea monitors.”

The plaintiffs claim that NOAA Fisheries and the Department of Commerce violated the National Environmental Policy Act (NEPA) and the Regulatory Flexibility Act (RFA) when designing and implementing the final rule.

Read the full story at Seafood News

Push to scale back US environmental law draws ire at hearing

February 13, 2020 — The Trump administration on Tuesday hosted the first of two hearings on its proposal to speed energy and other projects by rolling back a landmark environmental law. Opponents from Western states argued the long-term benefits of keeping the environmental reviews.

Among other changes, President Donald Trump wants to limit public reviews of projects — a process that’s enshrined in the National Environmental Policy Act signed in 1970 by President Richard Nixon. The administration also wants to allow project sponsors to participate at an early stage of drafting federal environmental impact statements.

Dozens of environmental and tribal activists testified at the Denver hearing of the president’s Council on Environmental Quality.

The act “is not just a tool to reduce impacts to the environment,” said Gwen Lachelt. a commissioner in Colorado’s La Plata County. “It’s a basic tool of democracy.”

Representatives of oil and gas groups countered that multiyear environmental reviews of pipelines, coal mines and renewable energy projects kill jobs. increase costs and often outlast a project’s economic feasibility.

That proposed changes chagrined Jeannie Crumly, a rancher from Nebraska who has fought construction of the Keystone XL oil pipeline for more than a decade. President Barack Obama canceled the project, only to have it resurrected by Trump.

Read the full story at the Associated Press

NEPA climate overhaul could unleash energy projects

January 8, 2020 — The White House is poised to exclude climate considerations from its controversial rewrite of rules surrounding the nation’s core environmental law.

The Council on Environmental Quality’s proposed changes to National Environmental Policy Act guidelines will likely emerge this week.

NEPA, signed into law by President Nixon, gives communities input and allows them to challenge federal decisions on projects like pipelines, highways and bridges. And it requires federal regulators to analyze a host of impacts.

The Trump plan is expected to “simplify the definition of environmental ‘effects’ and clarify that effects must be reasonably foreseeable and require a reasonably close causal relationship to the proposed action,” according to a draft White House memo obtained by E&E News.

In other words, the government could only study the impacts tied directly to a project — not how a project would add to a larger problem, something environmentalists have been clamoring for.

“No one pipeline causes climate change, so that wouldn’t be considered a reasonably close causal relationship,” explained Christy Goldfuss, a senior vice president at the left-leaning Center for American Progress (CAP). “I suspect that’s the intent.”

Read the full story at E&E News

Aquaculture industry under pressure on both coasts

October 31, 2019 — Maquoit Bay in Brunswick and Puget Sound in Washington state are separated by thousands of miles, but shellfish farmers in both places are feeling some heat.

Earlier this month, a federal judge in Seattle ruled that the U.S. Army Corps of Engineers permit that authorizes virtually all shellfish aquaculture in Washington state was void because “the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities” as required by the federal Clean Water Act and the National Environmental Policy Act.

The court’s order could force Washington’s shellfish farmers to cease activities other than the harvest of animals already in the water until the Corps issues individual permits for each shellfish farming site.

For the moment, the court’s decision applies only to the Washington state aquaculture industry but, even if the court expands its reach, Maine’s aquaculture industry won’t be affected.

“It has no bearing in the rest of the country,” Jay Clement, chief of the Maine Project Office in the Corps of Engineers’ New England District Regulatory Division, said last week.

The permit the court considered was a “nationwide permit” authorizing discharges, structures and work related to commercial shellfish aquaculture activities.

“There have been no nationwide permits in New England since 1995,” Clement said. “It really doesn’t apply to how we do business in Maine.”

Read the full story at The Ellsworth American

Court: No new offshore drilling work during federal shutdown

January 21, 2019 — A federal judge in South Carolina has turned back the Trump administration’s attempt to continue preparatory work for offshore drilling during the federal government’s partial shutdown, issuing a ruling in a federal lawsuit challenging the overall expansion plans.

In his order, U.S. District Judge Richard Gergel halted federal agencies “from taking action to promulgate permits, otherwise approve, or take any other official action” for permits to conduct testing that’s needed before drilling work can begin.

The ruling comes a few days after President Donald Trump’s decision this week to recall workers at the Bureau of Ocean Energy Management so they could continue to process testing permits for possible drilling off the Atlantic coastline. The recall drew an objection from the U.S. House Natural Resources Committee chairman, Democratic Rep. Raul Grijalva (gri-HAWL-vah) of Arizona. He called on Acting Interior Secretary David Bernhardt to reverse course or provide a briefing on the legal justification for the move.

Earlier this month, South Carolina joined a federal lawsuit opposing the administration’s plans to conduct offshore drilling tests using seismic air guns. Gergel is overseeing that case, initially filed by environmental groups and municipalities along the state’s coast.

The suit challenges permits for the testing that precedes the drilling itself. It claims the National Marine Fisheries Service violated the Marine Mammal Protection Act, the Endangered Species Act and the National Environmental Policy Act in issuing the permits.

Read the full story at the Associated Press

BOEM Releases Draft Wind Energy Areas in New York Bight

November 15, 2018 — The following was released by the Bureau of Ocean Energy Management (BOEM):

Intergovernmental Renewable Energy Task Force Meeting on the New York Bight

November 28, 2018
Hotel Pennsylvania
401 Seventh Avenue at 33rd Street
New York, NY 10001

Draft Wind Energy Areas

After reviewing the comments received in response to the Call for Information and Nominations, comments received during stakeholder meetings and general feedback, BOEM has delineated draft Wind Energy Areas in the New York Bight.

What is a Wind Energy Area?

As a reminder, a Wind Energy Area is a portion of the Outer Continental Shelf identified by BOEM for an Environmental Assessment under the National Environmental Policy Act (NEPA). Traditionally, BOEM has identified a Wind Energy Area and then offered that entire area for sale as a Lease Area. However, the fact that an area is designated as a Wind Energy Area does not mean that it will necessarily be offered for sale. The proposed area for sale, or Lease Area, will be determined at the Proposed Sale Notice stage.

What do the different colors mean?

The Draft Wind Energy Areas are depicted in two colors, dark green and light green.  The dark green areas are BOEM’s primary recommendations, areas that relative to others with in the Call Areas present the least amount of conflict with a potential offshore wind facility.  Areas in light green are secondary recommendations, which are slightly more conflicted than the dark green areas, and are where BOEM welcomes additional stakeholder perspectives.

Task Force Agenda

Please see a draft task force agenda below.  Note that it is subject to change prior to the meeting date.

New York Bight Task Force Roster (as of November 14, 2018)

If you would like to provide updated contact information to BOEM, please reach out to luke.feinberg@boem.gov.

Read the announcement here

Fisheries Survival Fund Expresses Concern Over Recent Ruling in NY Wind Farm Case

October 1, 2018 — WASHINGTON — The following was released by the Fisheries Survival Fund:

Late yesterday, the U.S. District Court for the District of Columbia denied a ruling for summary judgment in the ongoing lawsuit against the leased wind farm area in the New York Bight. While the Fisheries Survival Fund (FSF) is pleased that the court found that the fishing industry and affected port communities have standing to bring claims in the case, we are concerned with other aspects of the ruling.

Specifically, we are troubled by the court’s finding that our claims under the National Environmental Policy Act (NEPA) are not ‘ripe.’  The court held that, because the Bureau of Ocean Energy Management (BOEM) retains some authority to preclude surface disturbing activities in the period between issuing a lease and the approval of a construction and operations plan, the lease itself does not constitute the irretrievable transfer of resources required under NEPA. The court found that the “lease sale does not represent the final word on anything, nor does it commit any resources, even putting aside the question of whether it does so irretrievably.”

This suggests that the court views the lease as something akin to a ‘ticket’ to proceed, rather than a guarantee of any rights.  Just as a concertgoer’s ticket can be revoked by a venue for inappropriate behavior, the court seems to contend that the leaseholder’s ‘ticket’ for at-sea development can be revoked by BOEM at any time. But in fact, judicial precedent interpreting the Outer Continental Shelf Lands Act (OCSLA) has held that the leaseholder gains more rights as development proceeds, and as more time and money are invested in a project.  This means that, the further development proceeds, the more difficult it becomes for plaintiffs to overturn a leasing decision.

We are concerned that the court’s view of the case as premature at the leasing stage, combined with case law finding a leasing challenge too late at the construction and operation plan phase, leaves plaintiffs with no opportunity to challenge this siting decision.

We are encouraged the court never contested our view that the unsolicited bid procedure allowed BOEM to decide, behind closed doors, what area of the ocean was to be leased. But we are troubled by the court’s ruling that our OCSLA claims are barred because we did not comply with the provision requiring 60 days notice of an intended filing. We were not able to provide 60 days’ notice, because BOEM scheduled the lease sale only 45 days after publication of the Final Sale Notice.

The court held that we were not excused from compliance with the 60-day notice period because the statute does not require BOEM to schedule its lease sales with sufficient time to accommodate potential claimants. If the court’s position is upheld, BOEM apparently would have the ability to lease any portion of the ocean unchallenged, and would deny any harmed parties their right to challenge a proposed lease sale under the OCSLA.  We believe given these circumstances that we should have been granted an exemption from this requirement.

About the Fisheries Survival Fund
The Fisheries Survival Fund (FSF) was established in 1998 to ensure the long-term sustainability of the Atlantic sea scallop fishery.  FSF participants include the vast majority of full-time Atlantic scallop fishermen from Maine to North Carolina.  FSF works with academic institutions and independent scientific experts to foster cooperative research and to help sustain this fully-rebuilt fishery.  FSF also works with the federal government to ensure that the fishery is responsibly managed.