2021 witnessed a new but familiar competition among stakeholders for the use and enjoyment of the Outer Continental Shelf. Last year, interested parties initiated five lawsuits against the first federally approved offshore wind farm, Vineyard Wind I (located off the coast of Nantucket). And 2022 has so far continued the trend with a new challenge to the Bureau of Ocean Energy Management’s (BOEM) designation of Wind Energy Areas in the New York Bight in late January. These legal challenges echo the arguments marshalled in numerous lawsuits across the Nation to delay or prevent oil and gas development on public lands. Developers seeking to participate in the energy transition can learn from the experience of oil and gas development on federal lands.
A Familiar Playbook
Since nearly the inception of the National Environmental Policy Act (NEPA), Endangered Species Act, and a slew of related environmental legislation, the competition for federal resources has played out, in part, in the courts. Interested parties ranging from environmental groups to ranchers have presented legal challenges to the development of federal resources for energy.
The key vehicles for halting unwanted or unlawful development are NEPA and the Administrative Procedures Act. Through these statutes, those potentially adversely impacted by energy development can mount a variety of challenges to the process employed by BOEM, the Bureau of Land Management, and others to identify, analyze, and ultimately approve energy development. In many instances, these lawsuits, whether intended or not, had the effect of delaying energy development, imposing significant additional development and operational restrictions, and creating uncertainty around the access and development of federal energy resources.
The transition from fossil fuels to renewable energy sources, such as wind and solar, is at risk of experiencing similar delay and uncertainty. Citizen groups concerned not only with ecological and environmental impacts, but also the impact to visual resources, are mounting similar challenges to the Nation’s effort to develop offshore wind.
The most recent example is a challenge to BOEM’s designation of the New York Bight Wind Energy Areas. In Save Long Beach Island v. Haaland, No. 1:22-cv-00055, citizens from Long Beach Island claim that BOEM designated the Wind Energy Areas without properly considering the cumulative impacts of development or adequate alternatives. The citizen group also claims BOEM failed to consult with the Fish and Wildlife Service about the potential impacts of development on the North Atlantic right whale. To remedy these purported deficiencies (which the agency can still address before development occurs), the citizen group seeks the preparation of a new programmatic environmental impact statement assessing whether the Wind Energy Areas are reasonable. If they prevail, the preparation of such an PEIS could take years.
Offense is the Best Defense
The net effect of such a challenge for the developers is delay and uncertainty concerning the potential areas for development, as well as the potential stranding of capital, such as funds tied up in lease bids.
To counter these threats, developers looking at offshore and onshore renewable resources should proactively engage in the NEPA process with the responsible agency. Active engagement is critical for creating a defensible record should the agency action experience a legal challenge.
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