Saving Seafood

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

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.

Green groups sue over expanded Gulf drilling

July 19, 2018 — Green groups are suing the Trump administration over its decision to expand drilling in the Gulf of Mexico.

Earthjustice filed the lawsuit on Monday on behalf of three groups, the Gulf Restoration Network, the Sierra Club and the Center for Biological Diversity, against the Interior Department and Bureau of Ocean Energy Management.

The suit targets a decision from the administration to open up 78 million acres of the Gulf to potential drilling.

The groups say regulators have failed to do the necessary environmental checks and are in violation of the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA).

“The Gulf is one of the most productive marine regions in the United States, supporting many species of turtles, dolphins and whales as well as accounting for one third of the nation’s seafood catch every year,” said Cynthia Sarthou, executive director of the Gulf Restoration Network, in a statement.

Read the full story at The Hill

House Committee on Natural Resources: Nightmares of NEPA

April 25, 2018 — The following was released by the House Committee on Natural Resources:

Today at 2:00 PM EST, the Full Committee will meet to examine the weaponization of the National Environmental Policy Act (NEPA) and the implication of environmental lawfare.

Originally designed as a tool to protect the environment, NEPA has become a tool of obstruction, and in many cases, ironically, has caused more harm than good for the environment. Litigation activists, extreme environmentalists and special interest groups will do everything in their power to stop, delay or restrict federal projects, and the avenue created by the vague and ambiguous language of NEPA is their go-to weapon of choice in the courts.

Excessive lawsuits have led federal agencies to make environmental analysis documents “bullet-proof,” in fear of litigation. This “analysis paralysis” approach is costly to American taxpayers, lengthy and overall prevents critical projects from getting off the ground. Our nation’s environmental review and permitting process takes significantly longer than other Western democracies with comparable, stringent environmental protections. Germany, Canada and Australia are all able to approve most major infrastructure projects within TWO YEARS. Why should a developer invest in American projects or infrastructure where the threat of litigation and delay is so great, when they can go elsewhere? NEPA doesn’t just impact oil and gas development, but also renewable energy projects, infrastructure, water shortages in the West, and proper forest management to prevent catastrophic wildfires.

NEPA → Foreign Dependency on Energy

Earlier this year, our friends in New England received a late Christmas present from the Kremlin: Russian Natural Gas. The reason? A lack of infrastructure and pipelines to transport domestic energy. As long as extreme environmental groups continue to weaponize NEPA and halt energy infrastructure projects, our nation will continue to be dependent on foreign energy.

NEPA → Exacerbates the Western Water Crisis & Aging Infrastructure

The construction of desperately needed water infrastructure projects in the West is at a standstill. Why? NEPA. And because of this, we have a water supply today that falls short of meeting today’s need.

In one instance, it’s taken the Bureau of Reclamation and the California Department of Water Resources (DWR) 16 years and counting to study and approve the proposed Sites Reservoir, a new 1.8 million-acre-foot off-stream reservoir in northern California. Throughout the process, 52 alternative locations for the reservoir have been evaluated.  This potential project – along with others in the state – continue to be subject to seemingly endless studies necessitated by burdensome NEPA requirements more than a decade after they were initiated. Californians are still waiting for this project to be approved, while the opportunity to increase smart surface water storage remains gridlocked under environmental review.

NEPA → Wildfires

Lawson Fite, General Counsel of the American Forest Resource Council, who testified before the Committee last year, argues that a large percentage of lawsuits aren’t targeted as specific legal violations, but are instead used by self-proclaimed “environmental groups” to halt or prevent forest restoration activities.

Just last year, an extreme environmental organization used NEPA as a tool to sue and subsequently stop fire mitigation projects in Lincoln, Montana. Two wildfires ignited weeks later.

Learn more about the House Committee on Natural Resources by visiting their site here.

 

Tom Davis to Congress: ‘Oil and water should not mix’

January 17, 2018 — Below is the text of testimony state Sen. Tom Davis, R-Beaufort, plans to deliver Friday, Jan. 19, before the U.S. House Committee on Natural Resources’ Subcommittee on Energy and Mineral Resources.

The hearing is titled “Deficiencies in the Permitting Process for Offshore Seismic Research.”

Davis provided the text to The Island Packet and The Beaufort Gazette on Wednesday.

1. Impact of seismic testing:

Seismic testing involves firing loud sonic guns into the ocean floor every 16 seconds to read echoes from the bottom geology, with the tests taking place over miles of ocean for months at a time. The National Oceanic and Atmospheric Administration (NOAA) confirms that the sound from the sonic guns can be recorded from sites more than 1,860 miles away.

Scientists disagree on whether these underwater noises are lethal, but most do agree the blasts could alter sea mammals’ behavior, affecting their migration patterns, mating habits and how they communicate with each other. Most animals in the ocean use sound the way animals on land use eyesight; saturating their environment with noise will have an impact. ExxonMobil had to suspend seismic-blasts near Madagascar after more than 100 whales beached themselves. NOAA estimates that 138,000 marine animals could be injured, and 13.6 million could have their migration, feeding, or other behavioral patterns disrupted.

Seismic testing also affects commercial and recreational fishing — sonic blasts can decrease catch rates of commercial fish species by an average of 50 percent over thousands of square miles. Seismic blasting will affect fish that spawn in the rivers and estuaries all along the East Coast. A 2014 study cited by Congressmen John Rutherford (R-FL) and Don Beyer (D-VA) that found reef fish off North Carolina declined by 78 percent during seismic testing compared with peak hours when tests weren’t being conducted.

2. Results of seismic tests would be proprietary to private companies.

Proponents for testing and drilling often argue that seismic tests are necessary in order to provide coastal communities with data about oil and gas deposits off their shores that is necessary in order to assess whether it makes economic sense to move forward with drilling for those resources. But that information is considered proprietary by the private companies conducting them. Local decision makers won’t have access to it, nor will the public. Not even members of Congress can get their hands on it.

3. Damages associated with drilling.

Accidents happen in a world where human error, mechanical imperfections and coastal hurricanes all play unexpected roles. When you drill, you spill. It is inevitable. The oil industry touts a 99 percent safety record, but that 1 percent is pretty horrific for people living in the vicinity of a spill when it occurs. The federal Mineral Management Service predicts at least one oil spill a year for every 1,000 barrels in the Gulf of Mexico over the next 40 years — a spill of 10,000 barrels or more every three to four years.

We saw what happened in the Gulf of Mexico in 2010 when the BP Deepwater Horizon rig spilled millions of barrels of oil into the gulf. It was a disaster, but thankfully the Gulf’s bowl-like shape contained the spill in that region. A similar spill off the Atlantic Coast would be a disaster of epic proportions. If oil entered the Gulf Stream it would be forced up into the Chesapeake Bay, the Hudson River Valley, the Gulf of Maine, the Grand Banks (some of the richest fishing grounds in the world).

The Gulf of Mexico Deepwater Horizon blowout showed that oil cannot be removed from salt marshes and other wetland systems. It can remain in the sediments for decades, as was seen in marshes in Massachusetts. Coastal salt marshes in South Carolina are among the most productive ecosystems in the world, and nursery grounds for many estuarine and marine species. Toxic substances from oil spills, both chronic and acute, will put all of these organisms at risk.

Even if a spill never occurs — and both the oil industry and the federal government admit that spills are inevitable – there’s still an adverse impact to South Carolina’s coast in that the land-based infrastructure necessary to support offshore drilling is dirty and highly industrial. Also, the infrastructure required to transport offshore oil is devastating, e.g., a series of canals built across Louisiana wetlands to transport oil has led to vast destruction of marshlands. Healthy marshlands are a critical component of our ecosystem.

Read the rest of Davis’ future testimony at the Island Packet

 

NEPA: An Environmental Law Subverted

November 29, 2017 — WASHINGTON — The following was released by the House Committee on Natural Resources:

Today, the Full Committee held an oversight hearing to discuss improving and modernizing the National Environmental Policy Act (NEPA). The panel discussed deficiencies in NEPA’s implementation and potential legislative improvements to enable the law to best serve its intended purpose.

“In 1969, NEPA was originally designed as a tool to assess the impacts of government actions on the environment. Unfortunately, today it has become a sweeping regulatory framework that does the exact opposite,” Chairman Rob Bishop (R-UT) stated.

 “We can both better protect the environment and allow for thorough review and processing of critical economic, energy and infrastructure activities in a timely manner. These concepts are not mutually exclusive.  But it simply won’t happen unless Congress acts to clarify NEPA’s intent, scope and limitations,” Bishop added. 

 Witness Philip Howard, Chairman of Common Good, noted that prolonged environmental reviews on a range of NEPA projects negatively impact the environment, a contradiction of NEPA’s original intent. He cited NEPA-related permitting delays in rebuilding the nation’s highway infrastructure resulting in an extra 51 million tons of carbon dioxide emissions.

“These delays are costly and, often, environmentally destructive,” Howard said.

Howard lauded NEPA’s original environmental objectives. The goals, however, “have been subverted by a process that takes years and ends up interfering with important projects instead of promoting better projects.”

Witness James Willox, Wyoming County Commissioners Association Member, reiterated the disconnect between NEPA’s intent and the statute’s implementation.

“What was once a helpful look at proposed actions has metastasized into a grotesque perversion of Congressional intent whereby agency officials are forced into years of analysis and reams of paper designed to fend off litigation instead of making sound, informed policy decisions,” Willox said.

“NEPA itself was never intended to be an obstructionist part of our infrastructure nor building of any other thing. But it has been used as that,” Rep. Don Young (R-AK) stated. “NEPA should not be used to slow down and impede development because it does not protect the environment. And that’s really what we should be talking about.”

 Witness Mike Bridges, Washington State Building and Construction Trades Council Executive Board Member, echoed the same concerns, emphasizing the law’s negative economic impacts.

“The seemingly endless and arbitrary regulatory process in Washington State will discourage future projects that would employ members of the Building Trades and my community,” Bridges said.

Members and the panel discussed changes to the law including increasing the role of counties and local governments, fast-tracking the permitting of projects, and avoiding duplicative environmental analyses.

“Counties in Wyoming and across the West are ready and willing to assist in the goal of modernizing NEPA to ensure that it continues to work for the benefit of decision-makers,”Willox said.

Click here to view full witness testimony.

Learn more about the House Committee on Natural Resources by visiting their site here.

 

Booker Announces Landmark Environmental Justice Bill

October 24, 2017 — NEWAWK, N.J. — The following was released by the office of Senator Cory Booker:

Today, U.S. Senator Cory Booker (D-NJ) was joined by local community leaders and advocates from across New Jersey and the nation in announcing a landmark bill that represents a major step toward eliminating environmental injustice. The Environmental Justice Act of 2017 requires federal agencies to address environmental justice through agency actions and permitting decisions, and strengthens legal protections against environmental injustice for communities of color, low-income communities, and indigenous communities.

“Many communities across the country are facing environmental and public health threats that for too long have gone unaddressed, seemingly only noticeable to those who deal with the effects on a daily basis. These communities are often communities of color or indigenous communities, and they tend to be low-income,” said Sen. Booker.

“This is unacceptable and our bill is an important step in changing this reality. This legislation codifies and expands requirements that federal agencies mitigate impacts on vulnerable and underserved communities when making environmental decisions, and provides those communities with legal tools to protect their rights. We cannot have social justice or economic justice without environmental justice,” Sen. Booker concluded.

The bill is the culmination of a months-long process of working with dozens of grassroots organizations across the country to craft a comprehensive bill that strengthens environmental justice protections for vulnerable communities.

The bill was informed by Booker’s experience dealing with environmental injustice as Newark’s mayor and recent trips he’s made to North Carolina , Louisiana, and Alabama, where he met with communities struggling with environmental injustices, such as open-air hog waste lagoons adjacent to people’s backyards, industrial garbage dumps that pervade neighborhoods, and exceedingly high concentrations of oil and gas refineries that residents suspect are leading to a wide array of chronic illnesses.

Video to Sen. Booker’s remarks can be found here

“In the forty years since the Clean Air Act and Clean Water Act became law, the country has made great strides to protect our shared resources, but minority, low-income, and indigenous communities have continued to suffer disproportionate harm.  I am proud to support the Environmental Justice Act of 2017, which will reduce racial and economic disparities in environmental policies,” said Rep. Payne.

“We must adopt substantive policies that will provide protections for communities Of Color and low-income communities from harmful pollution. This bill would help those communities and we hope everybody gives it the serious consideration it deserves,” said Dr. Nicky Sheats, Esq., New Jersey Environmental Justice Alliance.

“As a Newark School Board member and a mother of 3 kids with asthma, it’s clear environmental justice is a civil right. In my city and so many other EJ communities, there’s too much lead in our drinking water, raw sewage in our waterways and diesel emissions sending kids to the ER. Those are the kind of cumulative impacts Senator Booker’s legislation takes on,” said Kim Gaddy, Clean Water Action’s Environmental Justice Organizing Director.

“For too long low income and communities of color in this country have suffered under the weight of cumulative, chronic and disproportionate pollution. This bill is a reminder of how critical it is to protect and restore these communities,” said Ana Baptista, Board Member, Ironbound Community Corporation.

The bill will be cosponsored in the Senate by U.S. Senators Tom Carper (D-DE), Richard Durbin (D-IL), Kirsten Gillibrand (D-NY), Brian Schatz (D-HA), Tom Udall (D-NM), Sheldon Whitehouse (D-RI) and Ed Markey. U.S. Rep. Raul Ruiz (D-CA) will introduce a companion bill in the House.

The Environmental Justice Act of 2017 is endorsed by more than 40 public health and environmental justice organizations.

A full list of endorsing organizations can be found here.

Specifically, the bill does the following:

Codifies and expands the 1994 Executive Order on Environmental Justice. Executive Order 12898 focused federal attention on environmental and human health impacts of federal actions on minority and low-income communities. The Environmental Justice Act of 2017 would codify this order into law, protecting it from being revoked by future Presidents. It would also expand the EO by improving the public’s access to information from federal agencies charged with implementing the bill and creating more opportunities for the public to participate in the agencies’ decision-making process.

 

Codifies the existing National Environmental Justice Advisory Council (NEJAC) and environmental justice grant programs. The bill ensures that NEJAC will continue to convene and provide critical input on environmental justice issues to federal agencies, and that several important environmental justice grant programs, including Environmental Justice Small Grants and CARE grants, will continue to be implemented under federal law. Since these grant programs and NEJAC have never been Congressionally authorized, they are susceptible to being discontinued by future Administrations.

Establishes requirements for federal agencies to address environmental justice. The bill requires agencies to implement and update annually a strategy to address negative environmental and health impacts on communities of color, indigenous communities, and low income communities. In addition, the bill codifies CEQ (Council on Environmental Quality) guidance to assist federal agencies with their NEPA (National Environmental Policy Act) procedures so that environmental justice concerns are effectively identified and addressed. The bill also codifies existing EPA guidance to enhance EPA’s consultations with Native American tribes in situations where tribal treaty rights may be affected by a proposed EPA action.

Requires consideration of cumulative impacts and persistent violations in federal or state permitting decisions under the Clean Water Act and the Clean Air Act. Currently, Clean Air Act and Clean Water Act permitting decisions do not take into account an area’s cumulative pollutant levels when a permit for an individual facility is being issued or renewed. This can result in an exceedingly high concentration of polluting facilities in certain areas, such as the area between Baton Rouge and New Orleans, Louisiana infamously known as Cancer Alley, where Senator Booker visited this summer. The bill also requires permitting authorities to consider a facility’s history of violations when deciding to issue or renew a permit.

Clarifies that communities impacted by events like the Flint water crisis may bring statutory claims for damages and common law claims in addition to requesting injunctive relief. Under current legal precedent, environmental justice communities are often prevented from bringing claims for damages. The bill would ensure that impacted communities can assert these claims.

Reinstates a private right of action for discriminatory practices under the Civil Rights Act. The bill overrules the Supreme Court decision in Alexander v. Sandoval and restores the right for individual citizens to bring actions under the Civil Rights Act against entities engaging in discriminatory practices that have a disparate impact. Currently citizens must rely upon federal agencies to bring such actions on their behalf.

Since his time as a tenant lawyer, City Council member, and mayor of Newark, Booker has seen first-hand how low-income communities and communities of color are disproportionately affected by poor air quality, tainted drinking water, and toxic Superfund sites. For example, Newark has one of the highest rates of child asthma in the state, and half of all New Jerseyans live within three miles of a Superfund site. As Mayor, Booker championed the cleanup of the polluted Passaic River, a  federal Superfund site, and spearheaded the creation of community gardens that required planting in raised beds since the soil was too toxic to grow food for human consumption.

The following advocates also voiced their support of the Environmental Justice Act of 2017:

Cecilia Martinez, Executive Director. Center for Earth, Energy and Democracy, Minneapolis, Minnesota

“Some communities continue to bear the harmful consequences of industrial pollution.  This bill will help to ensure that all communities, especially environmental justice communities will be healthy, safe and free from environmental harm.”

Vernon Haltom, executive director, Coal River Mountain Watch, Naoma, W.Va.

“From mountaintop removal coal mining in Appalachia to oil refining in Texas to uranium mining in the Southwest, polluting industries devastate the health of the communities least able to take a stand. This bill will support human rights for people traditionally ignored or oppressed by polluters.”

Michele Roberts, National Co-Coordinator, Environmental Justice Health Alliance

“This bill is much needed at this critical time when both public health and the environment are under attack. It will provide protection for communities that have been permitted to suffer the disproportionate burdens of toxic pollution.”

Robert Spiegel, Executive Director of the Edison Wetlands Association, Edison, NJ

“This bill by Senator Booker is a great start in addressing decades of environmental injustices. Environmental justice, clean water, clean air, and safe places to raise our families are not Republican or Democrat issues, they are human rights issues.”

Avery Grant, Executive Director, Concerned Citizens of Long Branch, Long Branch, New Jersey

“The Concerned Citizens Coalition of Long Branch endorses The Environmental Justice Act of 2017 as we have suffered the devastating effects of a 17-acre contaminated site in our community. It is paramount that we prevent future occurrences of contamination.”

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.