MEMORANDUM OPINION
TANYA
S. CHUTKAN, United States District Judge.
This
case concerns a Bureau of Ocean Energy Management
(“BOEM”) plan to lease a nautical area off the
coast of New York to Defendant-Intervenor Statoil Wind US,
LLC (“Statoil”), for development of a wind energy
facility. Plaintiffs[1], including the Fisheries Survival Fund,
claim that in issuing the lease, BOEM violated the National
Environmental Policy Act (“NEPA”), the Outer
Continental Shelf Lands Act (“OCSLA”), and the
Administrative Procedure Act (“APA”). Plaintiffs
filed a motion for preliminary injunction, which this court
denied. Memorandum Opinion, ECF No. 26. Now before the court
are Plaintiffs' Motion for Summary Judgment, ECF No. 39,
Defendant-Intervenor's Cross-Motion for Summary Judgment,
ECF No. 40, and Defendants' Motion for Summary Judgment,
ECF No. 42. For the reasons stated herein, Plaintiffs'
motion will be DENIED, Defendants' motion will be
GRANTED, and Defendant-Intervenor's motion will be DENIED
as moot.
I.
BACKGROUND
A.
Statutory & Regulatory Framework
1.
OCSLA
As
amended by the Energy Policy Act of 2005, Pub. L. 109-58, 119
Stat. 594 (2005), OCSLA authorizes BOEM to issue leases,
easements, or rights-of-way for offshore renewable energy
projects. 43 U.S.C. § 1337(p)(1)(C). In exercising this
authority, BOEM is required to consult with the U.S. Coast
Guard and other relevant federal agencies, and must consider
several factors that include, inter alia, safety,
protection of the environment, prevention of waste,
conservation of natural resources, national security
interests, and-critically-“the location of . . . a
lease. . . for an area of the outer Continental Shelf”
and “any other use of the sea or seabed, including use
for a fishery, a sealane, a potential site of a deepwater
port, or navigation.” Id. §
1337(p)(4)(A)-(L) & (J)(i)-(ii).
2.
NEPA
NEPA
was enacted to establish “a national policy [to]
encourage productive and enjoyable harmony between man and
his environment, ” to “prevent or eliminate
damage to the environment, ” and “to enrich the
understanding of the ecological systems and natural resources
important to the Nation.” 42 U.S.C. § 4321;
see also Dep't of Transp. v. Pub. Citizen, 541
U.S. 752, 756-57 (2004). NEPA serves these goals by imposing
“procedural requirements on federal agencies with a
particular focus on requiring agencies to undertake analyses
of the environmental impact of their proposals and
actions.” Pub. Citizen, 541 U.S. at 756-57;
Theodore Roosevelt Conservation P'ship v.
Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010) (noting that
“[NEPA] is an ‘essentially procedural'
statute, meant to ensure ‘a fully informed and
well-considered decision, not necessarily' the best
decision”) (quoting Vermont Yankee Nuclear Power
Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 558 (1978)). The statute requires that the relevant
agency (1) “consider every significant aspect of the
environmental impact of a proposed action, ”
Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983) (quoting Vermont
Yankee, 435 U.S. at 553), and (2) “inform the
public that the agency has considered environmental concerns
in its decisionmaking process.” Weinberger v.
Catholic Action of Hawaii/Peace Educ. Project, 454 U.S.
139, 143 (1981).
“NEPA
requires that when an agency proposes a ‘major Federal
action[] significantly affecting the quality of the human
environment,' the agency must prepare and circulate for
public review and comment an environmental impact statement
(“EIS”) that examines the environmental impact of
the proposed action and compares the action to other
alternatives.” Theodore Roosevelt Conservation
P'ship, 616 F.3d at 503 (quoting 42 U.S.C. §
4332(2)(C)); see also Sierra Club v. Van Antwerp,
661 F.3d 1147, 1153 (D.C. Cir. 2011). Nevertheless, an EIS is
not always necessary. See Public Citizen v. NHTSA,
848 F.2d 256, 265 (1988) (“NEPA requires the
preparation of a complete EIS for ‘major federal
actions significantly affecting the quality of the
human environment.'”) (emphasis in original).
Agencies may “prepare a more limited
document”-known as an Environmental Assessment
(“EA”)-if a proposed action is neither
categorically excluded from the EIS requirement nor of the
kind that would normally require an EIS. See 40
C.F.R. §§ 1501.4(a)-(b); Pub. Citizen, 541
U.S. at 757 (“CEQ regulations allow an agency to
prepare . . . an [EA] . . . if the agency's proposed
action neither is categorically excluded from the requirement
to produce an EIS nor would clearly require the production of
an EIS.”). An EA is a “concise public
document” intended to “[b]riefly provide
sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no
significant impact.” 40 C.F.R. §§
1508.9(a)(1); Pub. Citizen, 541 U.S. at 757-58.
Where preparation of an EA leads an agency to decide that an
EIS is unnecessary, the agency is required to issue a
“finding of no significant impact”-“a
document . . . briefly presenting the reasons why an action .
. . will not have a significant effect on the human
environment and for which an environmental impact statement
will therefore not be prepared.” 40 C.F. R.
§§ 1501.4(e), 1508.13.
B.
BOEM's Leasing Process
In
accordance with OCSLA, BOEM promulgated a series of
regulations governing the leasing and management of offshore
renewable energy projects. See 30 C.F.R. §
585.200-234. Pursuant to these regulations, the commercial
leasing process may be initiated by both solicited and
unsolicited applications. A solicited application is one in
which BOEM itself identifies the potential development site
and initiates the leasing process by publishing a notice of
Request for Interest (“RFI”) or a Call for
Information and Nominations in the Federal Register.
See 30 C.F.R. §§ 585.210, 585.211(a). An
unsolicited application is one in which a potential developer
applies for a site not otherwise under consideration by BOEM.
See 30 C.F.R. § 585.230.
Upon
receiving an unsolicited request, BOEM publishes a RFI to
seek public comment and determine whether there is
competitive interest from other developers. Id.
§ 585.231(b). If there is competitive interest, BOEM
proceeds with the competitive process. Id. §
585.231(c)(1). Otherwise, it publishes a notice of
Determination of No. Competitive Interest and follows a
separate procedure. Id. § 585.231(d)-(i).
Regardless of the procedure adopted in any case, BOEM must
consult throughout the leasing process with state task
forces, other state and local representatives, and with
representatives of Indian Tribes whose interests may be
affected. Id. §§ 585.102(e),
585.211(a)-(d), 585.231(e).
Before
issuing a lease, BOEM follows a four-step procedure, issuing
a Call for Information and Nominations, completing the Area
Identification process, publishing a Proposed Sale Notice,
and publishing a Final Sale Notice. Id. §
585.211(a)-(d). Once BOEM has issued a lease, the lessee must
submit a Site Assessment Plan for review before any
assessment activity takes place. Id. §§
585.601, 585.605. Even after completing a site assessment, a
lessee may not begin construction until it has submitted, and
BOEM has approved, a Construction and Operations Plan.
Id. § 585.620(c). BOEM can accept, reject, or
accept with modifications a lessee's Site Assessment or
Construction and Operations Plan, id. §§
585.613, 585.628, and must analyze the potential
environmental impacts of the plans. See Id.
§§ 585.613, 585.620(c).
C.
Lease OCS-A 0512
In
September 2011, a consortium of energy companies consisting
of the New York Power Authority, Long Island Power Authority,
and Consolidated Edison (collectively, “the
Consortium”), proposed developing a wind energy
facility covering approximately 81, 500 acres of ocean off
the coast of New York. NYAR-0074853, 0074854. Due to safety
concerns about shipping lanes, the Consortium later amended
the request to cover 81, 130 acres, or about 127 square
miles. NYAR-0074140. The Consortium claims the proposed
project has “the potential to be the largest offshore
wind energy facility in the United States.”
NYAR-0074853. Since the Consortium's request was
unsolicited, BOEM initiated an RFI on January 4, 2013 to
gauge other companies' interest in developing the area.
78 Fed. Reg. 760-02 (Jan. 4, 2013). The RFI also requested
that “interested and affected parties comment and
provide information about site conditions and multiple uses
within the area identified in this notice that would be
relevant to the proposed project or its impacts.”
Id. at 760 -61.
After
reviewing nominations of interest and acknowledging
competitive interest in the area, BOEM initiated the
competitive leasing process. Compl. ¶ 54. On May 28,
2014, BOEM published (1) a Notice of Intent to prepare an EA
and (2) a Call for Information and Nominations from companies
interested in commercial wind energy leases in the proposed
wind farm area. 79 Fed. Reg. 30, 643-44 (May 28, 2014); 79
Fed. Reg. 30, 645. BOEM also began the “Area
Identification” process to “identify offshore
locations that appear most suitable for wind energy
development” and “designat[e] . . . an area with
the greatest wind resource potential, minimal environmental
and space use conflict, and possible alternatives for
environmental analysis.” NYAR-0044172; 30 C.F.R. §
585.211(b). BOEM completed this process on March 14, 2016,
thereby marking the area as available for lease. See
NYAR-0045776.
On June
6, 2016, BOEM published a “Proposed Sale Notice for
Commercial Leasing for Wind Power on the Outer Continental
Shelf Offshore New York” in the Federal Register. 81
Fed. Reg. 36, 336 (June 6, 2016) (NYAR-0047230). The Proposed
Sale Notice included a sixty-day comment period, which closed
on August 6, 2016. Id. On June 6, BOEM also
published an EA, along with a Notice of Availability for a
thirty-day public comment period. 81 Fed. Reg. 36, 344 (June
6, 2016) (NYAR-0047238). According to the Notice of
Availability, the EA focused on assessing the potential
impact of and reasonable alternatives to “commercial
wind lease issuance, site characterization activities
(geophysical, geotechnical, archaeological, and biological
surveys) and site assessment activities (including the
installation and operation of a meteorological tower and/or
buoys).” Id. The Notice also stated that
“[s]hould a lessee propose to construct a commercial
wind facility through submission of a [Construction and
Operations Plan], BOEM would conduct a separate site and
project-specific [NEPA] analysis, likely an [EIS], and would
provide additional opportunities for public involvement . . .
.” Id. After requests from Plaintiff Fisheries
Survival Fund and other groups, BOEM extended the public
comment period to July 13, 2016. Compl. ¶ 62.
On
October 31, 2016, BOEM published the Final Sale Notice for
the lease sale of the area. 81 Fed. Reg. 75, 429 (Oct. 31,
2016) (NYAR-0075588). BOEM determined that fourteen different
bidders were “legally, technically, and financially
qualified to hold a commercial wind lease” and to bid
in the auction. Id. at 75, 430 (NYAR-0075589). BOEM
also published its revised EA, which found no significant
impact for commercial wind lease issuance and related
activities within the area. 81 Fed. Reg. 75, 438 (Oct. 31,
2016). The finding of no significant impact concluded that
“the reasonably foreseeable environmental impacts . . .
would not significantly impact the quality of the human
environment, ” and “therefore, the preparation of
an environmental impact statement [was] not required.”
Id.; see also NYAR-0074241. The EA stated
that “BOEM reduces its impacts early in the planning
process by conducting site identification through public
stakeholder meetings to avoid areas that may have significant
impacts on the environment, including marine mammals.”
NYAR-0074521.
On
December 15 and 16, BOEM held a lease auction, which Statoil
won with a $42, 469, 725 bid. See Commercial Lease
of Submerged Lands for Renewable Energy Development on
Continental Shelf (NYAR-0046753). BOEM and Statoil executed
the lease on March 15, 2017. NYAR-0046759. The lease grants
Statoil the exclusive right to conduct site characterization
activities and, within one year of lease issuance, to propose
a Site Assessment Plan. NYAR-0046753; 30 C.F.R. §§
585.601, 585.605. If BOEM approves the Plan, Statoil will
have five years to engage in site assessment-including
conducting surveys and using towers or buoys to evaluate wind
resources-and propose a Construction and Operations Plan, 30
C.F.R. §§ 585.235(a)(2), 585.601(b), which must
include detailed data and information to support the plan for
the wind facility, and proposals for minimizing environmental
impact. 30 C.F.R. § 585.626(b). BOEM would then conduct
“an appropriate NEPA analysis” based on the
information included in the Construction and Operations Plan,
before deciding whether to approve the Plan. 30 C.F.R. §
585.628(b).
II.
...