Save LBI offshore wind farm suit could get dumped, but here is why it has one more chance 

Save Long Beach Island’s lawsuit to halt wind farms off the coast here is in jeopardy of being tossed from a federal district court in Washingtonn D.C.

U.S. District Court Judge Dabney Friedrich granted the defendants’ motion to dismiss the case on March 9. However, she also allowed Save LBI’s request to submit an amended complaint. She gave the group 30 days to make the amendment or the case will be closed. The group has 2½ weeks left to do so.

Save LBI, a coalition formed to push proposed wind turbine projects farther from shore, filed its suit 14 months ago, claiming the Bureau of Ocean Energy Management (BOEM) failed to comply with the National Environmental Policy Act and the Endangered Species Act when it created the wind farm lease sites off the New Jersey coast.

A map from the federal Bureau of Ocean Energy Management shows areas under consideration for wind farms.

The group contends that BOEM, which has federal jurisdiction over the use of the ocean floor, needed to file a “regional programmatic environmental impact statement” under NEPA rules, which would address the cumulative impacts of the wind farms first, before it selected the five areas in the New York Bight that could potentially be leased for a wind farm construction.

The bight is the area of ocean between Montauk, located on the eastern tip of New York’s Long Island, to Cape May.

Friedrich, however, said just identifying areas for wind farms does not by itself grant any lease or permit any development that would require the review as defined in NEPA. Such reviews only become necessary “once [the agency] reaches a ‘critical stage of a decision which will result in irreversible and irretrievable commitments of resources to an action that will affect the environment.'”

She went on to state that after winning a lease, the lessee must still obtain further approvals in order to lawfully begin any construction activities. The lease itself grants the lessee only the right to operate “subject to” obtaining those approvals. As such, Friedrich said the court didn’t have jurisdiction to hear the case as presented.

Bob Stern, president of Save LBI, said the judge’s decision is a bump in a long road. He said the decision wasn’t based on the merits of the case regarding preparation of an environmental impact statement before wind energy areas are selected, which they still believe is a sound argument, only on the timing of the court’s review.

“We will take the judge up on her offer to refile the case within 30 days of her decision and update it with recent information and events to hopefully convince (the court) that the federal agency has in fact already made a final decision with respect to wind turbine location,” Stern said. “If that is not successful, we will re-file the case again when the federal agency approves the project.”

The defendants – BOEM, the Department of Interior, along with their respective directors – argued that any such amendment to the complaint would “likely … be futile.”

Stern, a retired former U.S. Department of Energy employee who’s lived on LBI for 50 years, filed the lawsuit almost a year prior to the spate of recent whale deaths that has riled up political debate against the wind farms.

Stern’s coalition opposes several wind farm lease locations because they argue they’ll have an adverse effect on the island’s tourist economy and will be placed in the path of the migratory route of the highly endangered right whale.