The U.S. Bureau of Ocean Energy Management has so prioritized offshore wind energy development that it is bypassing real environmental review and failing to consider alternative sites that won’t harm the commercial fishing industry, according to a lawsuit brought by the Texas Public Policy Foundation.
Filed 15 December, 2021, in federal court in Washington, D.C. on behalf of six fishing businesses in the U.S. states of Rhode Island, Massachusetts, and New York, the action challenges BOEM and other federal agencies on their review of the 800-megawatt Vineyard Wind project off southern New England, which received approval in May 2021 but has since been challenged in several other lawsuits.
The lead plaintiff, Seafreeze Shoreside Inc. of North Kingston, Rhode Island, is a homeport and major processor for the Northeast squid fleet. Captains there are adamant they will not be able to fish if Vineyard Wind and other planned turbine arrays are erected in those waters.
Seafreeze Fisheries Liaison Meghan Lapp said she sought out the Texas Public Policy after hearing it would do work “kind of along the lines of Pacific Legal Foundation, which litigated for the fishing industry on the Northeast marine monument” fishing restrictions recently reinstated by the Biden administration.
Lapp said she looked at the group’s website and read about their involvement on economic issues, healthcare including a case now before the Supreme Court, education, and local government.
“It looked promising, so I contacted them through their website,” several months ago, she said.
Along with putting a legal team on the case, the TPPF’s media unit traveled to Rhode Island to interview and film fishermen for a short documentary now posted on the foundation’s website and promoted through social media.
In addition to Seafreeze, the foundation is representing the Long Island Commercial Fishing Association, the XIII Northeast Fishery Sector Inc. in Dartmouth, Massachusetts, and family fishing businesses Heritage Fisheries Inc. and Nat. W. Inc., both in Westerly, Rhode Island, and Old Squaw Fisheries in Montauk, New York. All rely on waters around the Vineyard Wind lease for most of their annual catch, according to the lawsuit.
As defendants, the lawsuit names BOEM, the Interior Department, National Marine Fisheries Service and the U.S. Army Corps of Engineers, which all play a role in the permitting process.
The lawsuit quotes one key observation in the BOEM record of decision, which was based on the Corps of Engineers’ communications with fishermen: “While Vineyard Wind is not authorized to prevent free access to the entire wind development area, due to the placement of the turbines, it is likely that the entire 75,614-acre area will be abandoned by commercial fisheries due to difficulties with navigation.”
The BOEM process fails to account for impending conflicts at the start of its offshore leasing process, Lapp said. That was an argument presented in an earlier lawsuit against the Equinor Empire Wind lease off New York by the Fisheries Survival Fund, she recalled.
When that was rejected in court, “We said you guys [BOEM] have to start considering impacts up front … You need to de-conflict up front,” she said.
In the case of Vineyard Wind, the process failed to account for the region’s critical role in the longfin squid fishery, Lapp said. Agencies looked at major Massachusetts-based fleets in those waters, but “there’s hardly any squid unloaded in Massachusetts.”
“It’s all in Rhode Island and New York,” she said.
Based in Austin, Texas, the foundation is guided by “free enterprise, liberty, personal responsibility” and promotes a range of conservative and pro-business causes, according to its website. It has opposed renewable energy programs and efforts to move away from fossil fuels, and has received financial support over the years from ExxonMobil, Chevron, and the Charles H. Koch Foundation. One foundation subsidiary, the Fueling Freedom Project, defined its mission as making “the forgotten moral case for fossil fuels.” It was previously led by Doug Domenech, who was tapped to lead the Trump administration’s transition team at the Interior Department.
“In approving the Vineyard Wind project, the federal government trampled the rights of Americans to pursue its misguided goal of developing offshore wind energy at any cost,” Texas Public Policy Foundation Senior Attorney Ted Hadzi-Antich said. “In the process, it violated multiple federal statutes that protect the environment, national security, commercial fishing, and the nation’s food supply. Our lawsuit aims to protect the communities that depend on fishing to support their families, as well as ensure the areas do not become wastelands for marine wildlife.”
“The violations of the federal laws resulted from the federal defendants’ unintelligent pursuit of their overarching governmental goal of increasing the capacity of renewable energy generation on the outer continental shelf at any cost,” the lawsuit said. “By indiscriminately pursuing that goal, the federal defendants disregarded their legal responsibilities. Accordingly, the court should declare the issuance of the lease and the approval of the construction and operations plan unlawful and enjoin further construction of the Vineyard Wind project.”
A spokesman for Vineyard Wind said the developers do not comment on pending litigation.
The lawsuit’s charges reach back to earliest years of federal offshore wind policy, criticizing changes to BOEM policy under the Obama administration, including the so-called “Smart from The Start” streamlining of offshore energy permitting.
Under earlier rules, BOEM had to subject lease development to four stages: planning and analysis; lease issuance; site-assessment plan approval; and construction and operations plan approval, the lawsuit says.
“With regard to leasing, the 'Smart from The Start' policy merged the first three steps, leaving only one opportunity for public comment upon receipt of an unsolicited lease proposal, removing any pre-bid opportunity for public comment on the lease locations, and torpedoing any on-site evaluation of environmental impacts or existing ‘reasonable uses,’ including fishing, prior to lease issuance,” the lawsuit stated.
In 2009 and 2010, then-Interior Secretary Ken Salazar praised the planning process in East Coast public meetings to enable wind development. But the lawsuit criticized the changes, saying they “purport to authorize BOEM to lease large areas of the outer continental shelf to private companies without adequate process and without consideration of alternative sites.”
The Deepwater Horizon platform explosion and resulting oil spill in April 2010 distracted much of BOEM’s offshore planning. However, wind power planning remained in the agency’s portfolio, and even gained some resurgence during the Trump administration. Former Interior Secretary Ryan Zinke also promoted offshore wind development during his 2017-2019 tenure, but Trump himself frequently mocked renewable energy, and as his administration drew to a close in December 2020, Interior officials moved to derail approval of Vineyard Wind.
The developers had asked to withdraw and revise their application to use larger GE Haliade-X turbines, but BOEM announced 16 December, 2020, that it was terminating, not just suspending, that review process, the lawsuit noted.
Under the new Biden administration, BOEM in early 2021 then “resumed review of the terminated Vineyard Wind COP without requiring Vineyard Wind to update the agency with details describing studies, surveys, and other project specific information Vineyard Wind gathered during its 13-14 MW Haliade-X review between 1 December, 2020, and 22 January, 2021,” the lawsuit said.
BOEM violated the Outer Continental Shelf Lands Act “by approving the Vineyard Wind COP, which did not demonstrate that its proposed activity was safe by failing to ensure safe travel for commercial fishing boats, safe operation of bottom-trawl vessels, or a safe environment for emergency rescue operations,” the lawsuit said.
“The project will interfere with marine navigational radar, increasing risks for all vessels in the area,” it said. “BOEM failed to properly review and analyze Vineyard Wind’s decision to increase its turbine size even though it made the project less safe – a willful lack of due diligence that puts every ship traveling through the Vineyard Wind project area at risk.”
Reporting by Kirk Moore
Photo courtesy of Texas Public Policy Foundation
