February 18, 2017
New York

New York wind energy challenge stalls in federal court

By Kirk Moore | WorkBoat | February 16, 2017 | www.workboat.com

A federal judge has denied a bid by commercial fishermen to stop the lease of the nearly 80,000-acre New York Wind Energy Area to Statoil, ruling the fishermen failed to prove imminent harm, and that the project is still subject to years of review before construction.

“The court maintains its authority to ultimately enjoin the lease in this litigation if necessary,” U.S. District Court Judge Tanya S. Chutkan wrote in her opinion. The fishing industry argument that Statoil Wind US LLC will have made significant investments in the project – establishing property rights – during the Bureau of Offshore Energy review is not compelling enough to justify a preliminary injunction against granting the lease, Chutkan found.

Statoil’s investment – including a record-setting $42.5 million bid for the lease – is being made with full knowledge that it may not get approvals or ever build the project, Chutkan wrote. Fishermen said they will continue to pursue the case on merits.

“Getting a preliminary injunction granted is difficult, given the high standards that the court applies,” said Mayor Kirk Larson of Barnegat Light, N.J., one of the port towns that joined the Fisheries Survival Fund and other industry advocates in the case. “But our case will continue, and we are confident that we will succeed on the merits.”

Lawyers for fishermen told Chutkan that BOEM failed to adequately assess fishing and other established ocean uses of the New York Wind Energy Area. But the judge noted BOEM had been receiving commentary from the industry since a draft environmental assessment was published in June 2016.

“This isn’t fishermen against wind farms. This is fishermen against a regulatory process that allows private entities to go and condemn parts of the ocean with no public input,” Andrew Minkiewicz, a lawyer representing the New Bedford, Mass., based Fisheries Survival Fund, said in a Feb. 14 interview with radio station WBSM in the port city.

Minkiewicz and colleague David Frulla explained legal objections raised by commercial fishermen, in a motion for an injunction against the lease, and arguments presented in federal District Court in the District of Columbia on Feb. 8. Arguing in favor of the lease were lawyers for the Department of Interior and Norwegian energy major Statoil.

Of 11 proposed wind energy areas off the U.S. Atlantic coast, others were delineated with public input that fishermen felt mitigated the impact on their grounds, Frulla said. He likened the New York WEA to the Cape Wind proposal off Massachusetts, stalled amid opposition in the Cape Cod region.

The New York WEA started with an unsolicited bid from New York State public power companies, a provision in BOEM review processes that “takes the application, looks at it in house, and decides go or no go,” Frulla said.

“In other wind areas, we negotiated it so scallop and fishing areas were excluded,” Frulla said. In informal meetings with BOEM in the year leading up to the New York lease offering, fishermen warned there would be conflicts, he said.

With the potential for almost 200 turbines – tucked into a triangular lease between two shipping traffic separation lanes for New York harbor – “it’s going to completely block off this area to any fishing with mobile gear,” Minkiewicz said.

The Fisheries Survival Fund was organized by scallop harvesters, and years of successful management of that resource has helped make New Bedford the No. 1 East Coast port in catch value. Its bid for an injunction attracted support from other fishermen who catch summer flounder, monkfish and squid.

“This is probably one of the richest inshore scallop areas” and highly productive for squid too, Frulla said.

Meanwhile, BOEM has contracted with the University of Rhode Island for a study to document how the Deepwater Wind LLC Block Island Wind Farm is affecting recreation and tourism in Rhode Island. The two-year project aims to develop socioeconomic indicators to help regulators, industry, communities, and researchers measure the impacts of offshore renewable energy facilities on recreation and tourism.

BOEM expects to get “the first available empirical data on the effects of a U.S. offshore wind farm on coastal recreation and tourism,” according to the agency’s announcement of the agreement. Indicators developed in the project can be used to assess potential effects of future offshore wind energy projects throughout the U.S. and in Rhode Island.

The study is being conducted by an interdisciplinary group of URI social scientists and coastal management practitioners, including David Bidwell and Amelia Moore from the Department of Marine Affairs, the College of the Environment and Life Sciences, Hollie Smith from the Harrington School of Communication and Media, and Jennifer McCann and Tiffany Smythe from CRC and Sea Grant, both at the URI Graduate School of Oceanography.

URL to article:  https://www.wind-watch.org/news/2017/02/18/new-york-wind-energy-challenge-stalls-in-federal-court/