Property Owners Lodge a NEPA Challenge to the South Fork Offshore Wind Farm Project

Husch Blackwell LLP

Last week’s blog post on NEPA and renewable energy development discussed how NEPA intersects with legal challenges brought against wind and solar projects.  On March 9, 2022, concerned residents from the Town of East Hampton, New York filed suit to overturn the Bureau of Ocean Energy Management’s (BOEM) and Army Corps of Engineers’ (Corps) approval of the South Fork Wind Farm Project (South Fork Project).  In Mahoney v. Dept. of Interior, No. 2:22-cv-1305, plaintiffs allege violations of the National Environmental Policy Act, Clean Water Act, and Outer Continental Shelf Leasing Act by BOEM and the Corps.

The lawsuit comes on the heels of BOEM’s final approval of the South Fork Project’s Construction and Operations Plan (COP) on January 18, 2022, and its Record of Decision issued on November 24, 2021.  This action represents the most recent effort by interested parties located along the East Coast to challenge offshore wind development.

Plaintiffs contend that BOEM and the Corps each failed to adequately consider the potential for the South Fork Project’s transmission line to disturb and spread in-situ per- and polyfluoroalkyl (PFAS) substances.  According to plaintiffs, BOEM violated NEPA by failing to take a hard look at the potential spread of PFAS and its impact on private and public well water.  Likewise, plaintiffs assert that the Corps unlawfully issued a Section 404 permit for the same reasons.  Because plaintiffs seek to force BOEM and the Corps to conduct additional environmental analysis on the potential spread of PFAS, the suit carries the potential to significantly delay the South Fork Project.

Plaintiffs, however, face an uphill battle.  NEPA’s requirement that an agency take a hard look at the environmental consequences of a proposed action focuses on ensuring adequate disclosure and consideration of those potential impacts.  The statute does not preclude the agency from taking actions that impact the environment.  The Administrative Procedures Act also requires the court to assume a deferential standard of review.  In this instance, BOEM’s recognition of the presence of PFAS in a groundwater source in the Final Environmental Impact Statement and the FEIS’s assessment and explanation for why groundwater impacts are likely minor will undermine plaintiffs’ claim of arbitrary and capricious agency action.

BOEM’s response to this and other recent legal challenges remains to be seen.  How the agency elects to respond will provide significant insight into the agency’s appetite for defending against these sorts of legal challenges.  BOEM and the Department of the Interior seem to have recently been less enthusiastic in defending similar suits against offshore oil and gas development.

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