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July/August 2024

Litigation challenges to offshore wind development in the United States

Zachary Robert Evans


  • Recent federal court cases, such as Oliver v. U.S. Bureau of Ocean Energy Management (2024), highlight standards of legal review of environmental impacts, particularly regarding endangered species and deference granted to BOEM and NMFS’ analyses of same.
  • Strategies for deconflicting priorities include proposed mitigation funds for fisheries impacted by offshore wind activities, emphasizing fair processes and consideration of local context in planning.
Litigation challenges to offshore wind development in the United States
Nguyen Lam via Getty Images

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The federal government and many coastal states promote offshore wind energy to meet the Biden administration’s and state goals for renewable energy. But are opponents to offshore wind farms merely “titling at windmills,” claimed ills of their own imagination, or raising genuine concerns? We believe their opposition is often unwarranted but demands extra scrutiny. The Bureau of Ocean Energy Management (BOEM), the leasing office in the Department of the Interior, has attempted to address some concerns in new guidance directed at fishing conflicts, and the developers’ own plans also seek to defuse tensions and compensate fishers. This article discusses offshore wind opponents’ reasoning, as recorded in court decisions and public participation processes at the federal and state level and reviews some proposals and strategies for deconflicting priorities.

Recent federal cases provide analysis for this debate. In April 2024, the U.S. Court of Appeals for the First Circuit ruled for BOEM and other federal agencies in an offshore wind case, Oliver v. U.S. Bureau of Ocean Energy Management, 100 F.4th 1 (1st Cir. 2024) (Oliver). The appeals court affirmed a lower court’s rejection of Bay Staters’ challenge to the federal government’s approval of an offshore wind energy project. In particular, the appeals court refused to vacate the project’s biological opinion for an alleged failure to account for the project’s potential impact on endangered North Atlantic right whales. The reasoning suggests a deference to BOEM’s scientific expertise by opining that the agencies abided by consistent, procedural norms in their decision-making.

The same court also held for BOEM, the National Marine Fisheries Service (NMFS), and other federal agencies in Melone v. Coit, No. 23-1736 (1st Cir. 2024) (Melone), another case challenging offshore wind for violating the Marine Mammal Protection Act (MMPA). The court agreed with mitigation measures for nearby marine wildlife regarding construction and operational noise, line entanglement, and vessel strikes.

Understanding the rising tensions over offshore wind energy is especially important as BOEM moves forward with leasing coastal waters to offshore wind companies off the Atlantic Coast, off the coast of California, and in the Gulf of Mexico. In the Gulf, oyster and shrimp industries have expressed concerns about the pending leases; BOEM responded by removing some lease blocks.

Concerns about protected and endangered species

The primary concern of some opponents is wildlife conservation. Although wildlife enthusiasts normally favor renewable energy, the perceived conflict with whale conservation has yielded significant challenges for developers. Oliver and Melone provide insights into the courts’ consideration of the first issue, namely protection of an endangered whale species.

At the trial level, the appellants in Oliver alleged that NMFS issued a deficient biological opinion on the effects of offshore wind’s effects on the North Atlantic right whale. This species is protected under the Endangered Species Act. NMFS estimates only 360 individual whales remain. The appellants alleged that the agency: failed to analyze the species’ current status and baseline; ignored the effects of the offshore wind project on the whales; and disregarded the project’s impact on the species’ long-term recovery. The appeals court found none of the concerns rendered the biological opinion arbitrary and capricious.

The Oliver appeals court found that NMFS—despite not expressly citing the studies favored by the appellants—developed a biological opinion that aligned with the best available science and conducted reasonable decision-making on what scientific models to consider. On the issue of the effect of the offshore wind farm’s operational noise on the whales and inclusion of proper mitigation measures, the appeals court found the appellants failed to raise substantial arguments or introduce relevant evidence to support their appeal. Next, the appeals court gave deference to the agency in selecting which study on wind turbine operational noise to use, noting that the appellants did not fully address the agency’s rationale. The appeals court also rejected the claim that the biological opinion omitted consideration of heightened risk of entanglement fatalities as “purely speculative,” because the agency reviewed a key memorandum and determined the risk was “extremely unlikely.” Similarly, the appeals court determined that the appellants’ concerns about an increased risk of vessel strikes and effect of offshore wind development on the continued existence of the whale were speculative and unpersuasive, respectively. Lastly, the appeals court’s determination that the biological opinion was not defective insulated BOEM from claims that its reliance on the biological opinion constituted a National Environmental Policy Act violation.

Deciding Melone the day after Oliver, the First Circuit referred to the prior case in finding for NMFS and other federal agencies. The appeals court rejected appellants’ assertion that NMFS’s issuance of an Incidental Harassment Authorization (IHA) to Vineyard Wind was arbitrary and capricious. In addition to affirming the lower court’s granting of Vineyard Wind’s motion to intervene, the appeals court held that NMFS’s determination that the harassment of twenty North Atlantic right whales constituted a “small number” under the MMPA was not arbitrary. The court concluded that the agency applied scientific expertise to evaluate Vineyard Wind’s activities, namely the pile-driving noise, and found the activity to produce a “negligible impact” on the endangered whale species. In both Oliver and Melone, the First Circuit affirmed the agencies’ decision-making based on scientific expertise.

Impact on fishing groups

The commercial fishing industry is vital to the economy and culture of the East Coast. The industry supports 360,000 jobs and $2.1 billion in landed value from Maine to South Carolina, while also being integral to community identity. Similarly, recreational fishing along the Atlantic Coast supports an additional 46,500 jobs and adds $3.1 billion in value. Therefore, it is not surprising that fishers are concerned about the impact of offshore wind platforms on their traditional fishing grounds.

Cases alleging adverse impact on those fishing grounds have been filed since the emergence of offshore wind—and persist. For example, fishermen near Rhode Island’s Block Island have long contended that an area named Cox’s Ledge, productive for commercial fishers, should be excluded from development of Vineyard Wind. In response to 2023 proposals for the Revolution Wind farm, also off the Rhode Island coast, fisher advocacy groups raised concerns that the nautical transit lanes were insufficient for larger commercial vessels.

In California, San Luis Obispo fisheries filed a lawsuit in February 2024 against the State Lands Commission and wind developers claiming that underwater survey equipment could harm marine wildlife. Under a 2023 state law, wind energy development strategy is required to include best practices for addressing impacts on commercial and recreational fisheries. The county judge, however, rejected the plaintiff’s request for a preliminary injunction (Morro Bay Commercial Fisherman’s Organization v. California State Lands Commission, No. 24CV-0152 (May 15, 2024)) to stop developers from surveying the ocean floor, finding the statutory requirement to be vague and declining to consider evidence—submitted after the filing—of a near 70 percent decline in catch numbers. The case remains to be decided but may indicate a wariness some judges may have in interpreting state offshore wind laws.

A changing tide: Possible solutions to use conflicts

As offshore wind development is challenged in the courts, federal agencies and offshore wind developers have an opportunity to reduce friction with local interests. A 2022 study produced by Energy Innovation Policy & Technology LLC and Aspen Global Change Institute on procedural justice in wind planning emphasized the importance of fair processes, including participation, information transparency, decision-making inclusivity, and consideration of local context. Such actions can involve local stakeholders through education and active engagement with concerns.

In a recent announcement of a proposed offshore wind sale in the Gulf of Maine Wind Energy Area, BOEM has proposed a credit for a fisheries compensatory mitigation fund. This credit would “assist commercial and for-hire recreational fisheries directly impacted by income or gear losses due to offshore wind activities on offshore wind leases or easements and is intended to address the impacts identified in BOEM's environmental and project reviews.” The BOEM Records of Decision for Ocean Wind 1 in New Jersey and the Coastal Virginia Offshore Wind in Virginia require funds for direct compensation to fisherman, reserve funding for shoreside support services, and a claims procedure for fisheries gear loss and damage.

The offshore wind industry has also proposed solutions to local concerns. The Revolution Wind developers proposed a Navigation Safety Fund to “help commercial and charter fishing vessel upgrade radar and safety equipment.”

States, as part of an Atlantic coast working group, have also convened to discuss balancing renewable energy needs and local concerns in the absence of sufficient federal guidance. Nine states proposed a framework for establishing a regional fisheries compensation fund to administer “financial compensation paid by developers to address adverse effects of offshore wind . . . energy development on . . . commercial and for-hire recreational fishing industries.” Individual state legislatures, like the lower chamber of Connecticut, have considered mitigation fund bills to compensate for damages to marine environments and fisheries, as well as to establish consequences for development projects creating fewer jobs than promised.

These conflicts are not going away any time soon. In May 2024, a federal judge hearing Committee for a Constructive Tomorrow v. Department of the Interior (Case No. 1-24-cv-007774-LLA) ordered BOEM to file a report confirming NOAA Fisheries approved mitigation plans to protect the North Atlantic right whale. As litigation winds through the federal courts, renewable energy companies and federal agencies will need to continue to develop regulatory and legal strategies to mitigate opposition and prevent delays from stalling—or defeating—a transition to offshore wind energy.