A seafood industry challenge to a $42.5 million lease for a wind farm off the coast of New York was filed prematurely, a federal judge has ruled.
Led by the Fisheries Survival Fund, the plaintiffs in the case said the Bureau of Ocean Energy Management failed to adequately consider how the Statoil Wind US LLC wind energy facility would impact fishermen, along with other environmental and economic impacts.
The plaintiffs also argued that the agency failed to consider adequate alternatives or prepare an environmental impact statement, which the Bureau of Ocean Energy Management said was unnecessary after determining that there were no foreseeable environmental impacts that would significantly impact the human environment.
But U.S. District Judge Tanya Chutkan, while finding that the Fisheries Survival Fund and the other plaintiffs had standing to bring claims under the National Environmental Policy Act, ruled Sunday they were not yet ripe.
That’s because Statoil Wind US LLC, the company developing the 26-mile wind farm roughly 11 miles out from Long Island, must first submit its construction and operations plans, along with a site assessment, while the Bureau of Ocean Energy Management retains authority to reject any or all of those.
“The presence of these ‘conditions’ does not transform the lease into an irretrievable commitment of resources,” the 24-page ruling says.
Chutkan later adds: “The lease sale does not represent the final word on anything, nor does it commit any resources, even putting aside the question of whether it does so irretrievably,” the 24-page ruling says.
If its site assessment plan is approved, Statoil will have five years to conduct surveys and propose construction and operations plans.
In a statement, Fisheries Survival Fund said it was pleased Chutkan found the group has standing, but expressed concern at the court’s finding that the claims were not yet ripe.
“This suggests that the court views the lease as something akin to a ‘ticket’ to proceed, rather than a guarantee of any rights,” the group’s statement said. “Just as a concertgoer’s ticket can be revoked by a venue for inappropriate behavior, the court seems to contend that the leaseholder’s ‘ticket’ for at-sea development can be revoked by BOEM at any time.”
The group said its concern stems from judicial precedent, which it said bestows more rights upon leaseholders as the development process moves forward, making it more difficult as time passes to challenge a leasing decision.
The Fisheries Survival fund also pushed back on Chutkan’s finding that its challenge under the Outer Continental Shelf Lands Act is barred because it failed to comply with the statute’s mandatory 60-day notice of intended filing.
“We were not able to provide 60 days’ notice, because BOEM scheduled the lease sale only 45 days after publication of the Final Sale Notice,” Fisheries Survival Fund said, abbreviating the Bureau of Ocean Energy Management.
If that position is upheld, the group said it would deprive harmed parties of the opportunity to contest ocean leases, enabling the agency to move forward with leases without challenge.
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