United States District Court, District of Columbia
S. CHUTKAN United States District Judge
case involves the Bureau of Ocean Energy Management's
(“BOEM”) plan to lease to Statoil Wind US, LLC a
large nautical area off the coast of New York for the
development of a wind energy facility. Plaintiffs brought
suit challenging BOEM's alleged failure to properly
comply with the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4321 et seq.
and the Outer Continental Shelf Lands Act
(“OCSLA”), 43 U.S.C. §§ 1331-56, prior
to the issuance of the lease to Statoil. Before the court is
Plaintiffs' motion for a preliminary injunction to
temporarily halt BOEM from proceeding with the final sale of
Lease OCS-A 0512. (ECF No. 3). The court granted
Statoil's motion to intervene (ECF No. 13), and the court
heard oral argument on Plaintiffs' preliminary injunction
motion on February 8, 2017.
consideration of the motion and the arguments of counsel at
the hearing, and for the reasons stated herein,
Plaintiffs' motion for a preliminary injunction is
in this case are nine commercial fishing organizations and
businesses-the Fisheries Survival Fund, The Town Dock,
SeaFreeze Shoreside, Sea Fresh USA, Rhode Island
Fishermen's Alliance, Garden State Seafood Association,
Long Island Commercial Fishing Association, the
Fisherman's Dock Co-Operative of Point Pleasant, and the
Narragansett Chamber of Commerce-as well as three
municipalities-the Borough of Barnegat Light, New Jersey, the
Town of Narragansett, Rhode Island, and the City of New
Bedford, Massachusetts. The nine commercial and
organizational plaintiffs are all involved in the business of
fishing for scallops and squid in coastal areas located in
the same site as the planned wind farm at issue. (Compl.
¶¶ 4, 6-11, 13, 15). The municipal plaintiffs
assert economic and natural resource interests in the planned
site. (Id. ¶ 12, 14, 15).
BOEM of the U.S. Department of the Interior administers the
OCSLA and oversees the wind facility leasing process at issue
in this case. 30 C.F.R. § 585.100. Defendant-Intervenor
Statoil is the energy company that provisionally won Lease
OCS-A 0512 in BOEM's competitive online auction. (Bull
Decl. ¶ 18 (ECF No. 21-1)). Plaintiffs have also sued
the Secretary of the Interior in her official capacity.
(Compl. ¶ 16).
Statutory & Regulatory Framework
a federal agency engages in activity that may
“significantly affect the quality of the human
environment, ” NEPA requires it to prepare “a
detailed statement” on “the environmental impact
of the proposed action, ” as well as any potential
alternative actions that may be taken. 42 U.S.C. §
4332(2)(c)(i)-(v). The agency must thus take a “hard
look” at environmental consequences before moving
forward on a major administrative action. Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976). The purpose
of this requirement is to ensure “‘a fully
informed and well-considered decision, not necessarily'
the best decision.” Theodore Roosevelt Conserv.
P'ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir.
2010) (quoting Vermont Yankee Nuclear Power
Corp. v. Nat. Resources Def. Council, Inc., 435 U.S.
519, 558 (1978)). The statute sets procedural requirements,
but does not mandate certain outcomes. See Robertson v.
Method Valley Citizens Council, 490 U.S. 332, 350 (1989)
(“If the adverse environmental effects of the proposed
action are adequately identified and evaluated, the agency is
not constrained by NEPA from deciding that other values
outweigh the environmental costs.”).
the OSCLA, BOEM is authorized to issue leases, easements, or
rights-of-way for offshore renewable energy projects. 43
U.S.C. § 1337(p)(1). BOEM must consult with the U.S.
Coast Guard and other relevant federal agencies, and must
consider several factors, including safety, protection of the
environment, conservation of natural resources, and
prevention of interference with reasonable uses of the area,
including for fishing or navigation. 43 U.S.C. §
1337(p)(1)(C), (4)(A)-(L). Pursuant to these statutory
provisions, BOEM has promulgated regulations governing the
leasing process and management of offshore renewable energy
projects. 30 C.F.R. § 585.100 et seq.
BOEM's Leasing Process & Lease OCS-A 0512
oversees the development of renewable energy sources on the
outer continental shelf. Under its regulations, a private
developer may submit an unsolicited proposal to lease any
area of the ocean for a wind energy facility. 30 C.F.R.
§ 585.230. In September 2011, a consortium of energy
companies proposed the development of a wind energy facility
off the coast of New York, covering approximately 127 square
miles of ocean area. (Pl. Ex. C (Project Application and
Lease Request); Ex. K (Amended Lease Request)). Pursuant to
its regulations, BOEM issued a Request for Interest in
January 2013 to determine whether there existed competitive
interest in the area. 78 Fed. Reg. 760 (Jan. 4, 2013). After
determining that there was competitive interest, BOEM
published a ...