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Fisheries Survival Fund v. Jewell

United States District Court, District of Columbia

February 15, 2017

FISHERIES SURVIVAL FUND, et al., Plaintiffs,
v.
SALLY JEWELL, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge

         This 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.

         Upon 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 DENIED.

         I. BACKGROUND

         A. The Parties

         Plaintiffs 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).

         Defendant 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).

         B. Statutory & Regulatory Framework

         1. NEPA

         Before 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.”).

         2. OSCLA

         Under 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.

         C. BOEM's Leasing Process & Lease OCS-A 0512

          BOEM 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 ...


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