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Fisheries Survival Fund v. Jewell

United States District Court, District of Columbia

September 30, 2018

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


          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. ...

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