As the U.S. Department of the Interior’s Bureau of Ocean Energy Management (BOEM) moves forward with its offshore wind energy development efforts in the New York Bight, a federal case filed on January 10, calls attention to federal procedures used in such efforts.

Specifically, BOEM has announced that it will a hold a wind energy auction on February 23, 2022, for more than 480,000 acres in the New York Bight, an offshore area that extends northeast from Cape May in New Jersey to Montauk Point on the eastern tip of Long Island, allowing offshore wind developers to bid on 6 leases. The case, Save Long Beach Island v. U.S. Department of the Interior, brought in the U.S. District Court for the District of Columbia, is noteworthy as offshore wind development is still in its early stages in the U.S. and the procedures involved could be impacted. Attention has also been brought to competing interests that potentially need to be weighed.

Save Long Beach Island’s Complaint seeks to reverse and set aside BOEM’s decision that made a determination as to the final Wind Energy Areas in the New York Bight relevant to the leases above, alleging that the procedures followed were not in accordance with relevant laws.

Laws Cited

Central to the Complaint is the view that the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) apply to BOEM’s actions and that proper procedures required by these laws were not followed.

Specifically, much of the focus was on NEPA’s requirements concerning regional programmatic environmental impact statements which relate to the objective to “promote efforts which will prevent or eliminate damage to the environment,” and according to the Complaint, NEPA requires agencies to examine the environmental consequences of their actions before such actions occur.

Additionally, the Complaint focuses on the ESA’s requirement that any federal agency whose actions or decisions may affect a federally listed endangered species must consult with the U.S. Fish and Wildlife Service, which is said to have jurisdiction over the species relevant to the New York Bight.

Regional programmatic environmental impact statements

According to the Complaint, a regional programmatic environmental impact statement involves the following:

• An environmental assessment must be conducted, which determines whether the environmental impact statement is necessary
• A “major federal action” that “significantly affects” the human environment triggers the requirement for an environmental impact statement
  • An example is the adoption of formal plans upon which future agency action will be based
• The cumulative impact of the proposed federal action or project must be included in the statement
• The statement must provide a complete and accurate discussion of the proposed project’s foreseeable environmental impact
• If the statement identifies a significant effect, it must propose and analyze appropriate mitigation measures
• The statement must examine a reasonable range of alternatives to the proposed action

Procedures and BOEM’s Performance 

On April 11, 2018, BOEM published a ‘Call for Commercial Leasing for Wind power on the Outer Continental Shelf in the New York Bight,’ which the Complaint does not find fault with and says fulfilled the requirement with regards to the publication of a ‘Call for Information and Nominations.’ At this stage, BOEM consulted with “various parties and government entities,” including New York State, and sought input from the public.

On March 26, 2021, BOEM issued the “New York Bight Area Identification Memorandum,” which adopted the 5 Wind Energy Areas at issue. The Complaint argues that this event should have been preceded by an environmental assessment under NEPA as it constitutes a ‘major federal action,’ because it involves the “installation of hundreds of thousands of wind turbines [that] would have a significant effect on the human environment.”

The Complaint seems to take the position that had BOEM performed the assessment, the requirement for the preparation of an environmental impact statement would have been triggered. It argues that the effect of the failure to prepare the statement was to “foreclose discussion or consideration of alternative Wind Energy Areas.”

As indicated above, BOEM has now initiated the lease issuance stage of the process, by announcing the February 23 auction to be held. In relation to this, it has stated it will prepare a “Lease Sale Environmental Assessment,” to assess the potential environmental impacts associated with the issuance. Save Long Beach Island’s Complaint describes this as a “belated attempt to comply with NEPA,” that “comes too late in the process,” and “after BOEM has made a substantial commitment of resources.” It also says that other areas where the developemnt might be far less environmentally damaging will be excluded as a result.

The next major step in the process is that winning bidders in the auction will submit Construction and Operations Plans as to the offshore wind energy projects they seek to build. While the Complaint acknowledges that BOEM will likely prepare environmental impact statements to evaluate the effect of the projects, it argues that consideration of alternatives external to the 5 Wind Energy Areas will be precluded, and only limited alternatives within the already selected Wind Energy Areas will be considered.

Finally, according to the Complaint, once what it regards as the belated NEPA review is completed and other required federal authorizations are obtained, BOEM will issue a Record of Decision (ROD) adopting the Final environmental impact statement and approval of the construction plans. Save Long Beach Island alleges that during the process, the cumulative and synergistic effects of the combined projects will likely fail to be taken into account.

Potential Impact on Offshore Wind Leasing

Save Long Beach Island is seeking BOEM’s designation of the five Wind Energy Areas in the New York Bight to be reversed and set aside. As the designation of the Wind Energy Areas was a necessary step in the leasing process to allow development of offshore wind energy projects, should the organization prevail, the impact on the process currently in motion could be substantial.

Nationally, how the Court responds to the organizations’ arguments as to NEPA and ESA procedures will provide critical guidance for BOEM going forward as it continues its offshore wind development efforts.

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