Marine Resources Committee Report

Fisheries

A. Judicial Developments

1. Loper Bright Enter., Inc. v. Raimondo

The National Marine Fisheries Service (NMFS) received and approved an Omnibus Amendment from the New England Fishery Management Council and subsequently opened a comment period with a Notice of Proposed Rulemaking. The Final Rule was published and set out a process for an industry-funded monitoring program in New England fisheries. Appellants consisted of commercial herring fishing companies in New England. They argued that while the Magnuson-Stevens Fishery Conservation and Management Act permits NFMS to require monitoring programs, these programs are prohibited from being industry-funded. The D.C. Circuit Court of Appeals dismissed this case, finding that NMFS’s actions were a reasonable interpretation of its authority to require at-sea monitoring and to “implement measures ‘necessary and appropriate’” to achieve fishery management plans and goals.

2. Mexican Gulf Fishing Co. v. U.S. Dep’t of Com.

Several boat owners and operators filed suit over a final rule promulgated by NMFS that required charter boat owners in the Gulf of Mexico to submit electronic fishing reports that contain information on “all fish harvested and discarded, and any other information,” which includes several socio-economic factors including “‘[the charter fee, [] fuel price and estimated amount of fuel use, number of paying passengers, and the number of crew members for each trip.’” Further, the Final Rule requires them to share GPS information for all fishing trips with NMFS and the U.S. Coast Guard. The plaintiffs argued that they had no notice of the intention to include the socio-economic factors in the rule. The court disagreed, holding that the inclusion of socio-economic factors in the Final Rule was a logical outgrowth of the proposed rule. The court explained that the GPS requirement is necessary to aid in the enforcement of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Further, the court concluded that the tracking requirement does not violate the Fourth Amendment of the U.S. Constitution because the fishing industry is heavily regulated and it is a constitutionally adequate alternative for a search warrant. Accordingly, the court granted the government’s motion for summary judgment.

3. Oceana, Inc. v. Raimondo

Oceana, Inc., a non-profit organization, filed suit against NMFS, claiming that the agency’s rulemaking violated the MSA and failed to provide sufficient protections for the dusky shark. NMFS amended its 2006 Fisheries Management Plan for Atlantic highly migratory species to require greater training and certification requirements for fishermen to identify dusky sharks, create new protocols for releasing hooked sharks, to require the use of circle hooks for bottom-longline fisheries, and to implement communication protocols for fishermen to alert others to avoid areas where dusky sharks are encountered. Oceana argued that NMFS failed to actually reduce dusky shark bycatch, hold fisheries responsible for dusky shark bycatch, and establish that there was a reasonable likelihood that these measures would reduce the dusky shark bycatch to the minimum reduction needed to meet the statutory requirement to rebuild the population. The court disagreed, holding that the implemented measures were sufficient efforts to reduce dusky shark bycatch and to hold fishermen accountable, and that NMFS had sufficient evidence to conclude that the certification and training measures would reduce dusky shark bycatch. The D.C. Circuit Court affirmed the lower court’s ruling in favor of NMFS.

B. Legislative Developments

The Sustaining America’s Fisheries for the Future Act of 2021 (H.R. 4690) was introduced in the House of Representatives on July 26, 2021, and it was Ordered to be Reported by the Committee on Natural Resources on September 29, 2022. This Act would reauthorize the MSA and would set forth several new provisions, including those relating to the evolving impacts of climate change. The bill contains provisions that would require incorporating climate change considerations in fishery management, and there are provisions which would provide support to fishing communities through a disaster relief program.

C. Administrative Developments

On July 8, 2022, NMFS published a proposed rule that would implement provisions of the Illegal, Unreported and Unregulated Fishing Enforcement Act of 2015 and the Ensuring Access to Pacific Fisheries Act. In addition, this rule would amend the definition of “illegal, unreported, or unregulated fishing” (IUU fishing) as defined in the High Seas Driftnet Fishing Moratorium Protection Act. The proposed definition of IUU fishing would include fishing in foreign waters without permission of the foreign nation and fishing activities outside of any national jurisdiction that involve forced labor. The public comment period for this proposed rule closed on September 6, 2022.

NMFS issued a final rule to establish a “uniform, nationally consistent minimum insurance standard that would apply in regional regulatory programs that authorize an observer provider to deploy a person in any mandatory or voluntary observer program and that specify responsibilities of authorized providers.” Under the MSA, the regional fishery management councils are authorized to develop fishery management plans, and in these plans there may be a requirement that one or more observers be present on board a vessel engaged in fishing to collect data. This rule was promulgated to provide nationally consistent insurance coverage that addresses the risks observers face regardless of what fishery the observer providers operate in.

Aquaculture

A. Judicial Developments

1. Wild Fish Conservancy v. Washington Dep’t of Fish and Wildlife

Wild Fish Conservancy (WFC) challenged an aquaculture permit issued by the Washington Department of Fish and Wildlife (WDFW) authorizing Cooke Aquaculture Pacific to change from farming Atlantic salmon to steelhead trout in Puget Sound. WFC sought to reverse the permit approval and asked the court to order an environmental impact statement (EIS). The group alleged 1) WDFW’s conclusion that an EIS was not required was clearly erroneous and 2) WDFW violated the State Environmental Policy Act (SEPA) by failing to consider and disclose appropriate alternatives to the proposal. The Washington Supreme Court upheld the permit, affirming the lower court’s ruling that WDFW’s SEPA analysis was not clearly erroneous and the steelhead permit application did not require an alternative analysis.

2. Maquoit Bay, LLC v. Dep’t Marine Res.

Maquoit Bay, LLC opposed Mere Point Oyster Company’s (MPOC) application for a ten-year aquaculture lease for a site located approximately 1,250 feet from its shorefront property. The Maine Department of Marine Resources (DMR) approved the lease, finding that it would not unreasonably interfere with ingress or egress or with navigation. The company sought review of DMR’s decision. The court affirmed the approval, finding that no riparian owners would be affected because no one owned private property within 1,000 feet of the proposed lease. On appeal, the court found that DMR specifically considered how the proposed lease would affect Maquoit Bay’s ingress or egress. Moreover, the court also determined that DMR was not required to consider practicable alternatives when making the lease decision. Further, the court determined that the company did not meet its burden of showing that the lease interfered with commercial fishing. Additionally, the court deferred to DMR’s designation because it was reasonable. Therefore, the court affirmed the grant of MPOC’s lease.

3. NTSF Seafoods Joint Stock Co. v. United States

NTSF Seafoods Joint Stock (NTSF), a Vietnamese fish producer, sued the U.S. Department of Commerce (Commerce), arguing that a 2003 antidumping order that imposed duties on frozen fish imported from Vietnam to compensate for it being sold at less than normal value was excessive. Catfish Farmers of America (CFA) also sued, challenging the use of the India market for economic comparison and recommending Indonesia as a comparable market. The court found that Commerce did not abuse its discretion and denied NTSF’s motion for judgment based on the agency record. The court also concluded, despite the CFA’s challenges, that the use of India as a significant producer of comparable merchandise was supported by substantial evidence. However, the court remanded to determine whether Indonesia is also economically comparable to Vietnam and whether the Indian factors are the best available as compared to the Indonesian data to supplement the record.

4. Food and Water Watch et. al v. EPA

Food and Water Watch and a group of other nongovernmental organizations filed a petition for review of the U.S. Environmental Protection Agency’s (EPA) revised five-year NPDES permit granted to Ocean Era Incorporated’s Velella Epsilon Project, the first offshore finfish aquaculture operation in Federal waters. The permit, which EPA initially issued in October 2020 and was subsequently challenged by the groups in November of that year, was remanded for violating the Clean Water Act in May of 2022. EPA reissued the corrected permit in July, which was subsequently challenged again by the coalition in September.

B. Legislative Developments

On March 17, Alaska Senator Lisa Murkowski introduced the Ocean Regional Opportunity and Innovation Act of 2022, which would establish Ocean Innovation Clusters to strengthen coastal communities and the U.S.’s ocean economy through technological research and development, job training, and cross-sector partnerships, and for other purposes.

On December 8, California Rep. Alan Lowenthal introduced the SEAfood Act to authorize studies and pilot programs related to the development and production of aquaculture in the exclusive economic zone of the United States, and for other purposes.

These acts have not yet cleared their respective committees.

C. Administrative Developments

In March, the National Oceanic and Atmospheric Administration (NOAA) released its Guide to Permitting Marine Aquaculture in the United States to assist individuals with navigating the federal marine aquaculture permitting process.

In November, Washington’s Commissioner of Public Lands Hillary Franz announced an executive order that will prohibit net-pen aquaculture on state owned aquatic lands managed by the Washington Department of National Resources. This decision brings Washington into step with the other Pacific Coast states, California, Alaska, and Oregon.

Also in November, the U.S. Food & Drug Administration (FDA) released an amended environmental assessment (EA) related to the FDA’s approval that allows Aquabounty to raise its genetically modified AquAdvantage Salmon (AAS). In the amended EA, which considers any Endangered Species Act concerns, the FDA included “an exhaustive analysis of the likelihood and severity of harms that could occur in the highly unlikely event that AAS or their broodstock were to escape confinement, migrate from Canada to the U.S., and be present in the U.S. aquatic environment.” Public comments will be accepted on the EA until January 17, 2023.

Marine Mammals and the Marine Mammal Protection Act

A. Judicial Developments

1. Marino v. Nat’l Oceanic and Atmospheric Admin.

Conservation groups sued NMFS and NOAA to enforce conditions in special exception permits under the Marine Mammal Protection Act (MMPA) authorizing SeaWorld to capture and display orcas. The permits require display facilities such as marine zoological parks to transmit medical and necropsy data to NMFS, and in this case, the conservation groups sought to have NMFS enforce the permit requirement that SeaWorld transmit medical and necropsy data to NMFS after the death of Tilikum the orca, the subject of the documentary Blackfish. The D.C. Court of Appeals affirmed the district court’s determination that the plaintiffs lacked standing.

2. Ctr. for Biological Diversity v. Raimondo

In the continuation of a case initially filed in 2014, a conservation group sued NMFS for violating the Endangered Species Act (ESA), MMPA, and Administrative Procedure Act (APA) when preparing the Atlantic Large Whale Take Reduction Plan. In the latest litigation, the conservation group claimed that NMFS violated the MMPA by not issuing a negligible impact finding and by not reducing North Atlantic right whale mortality and injury below the potential biological removal level. The conservation group also claimed that NMFS violated the ESA by allowing unpermitted takes of the whales, not considering the full effects of the new plan, and failing to issue an incidental-take statement. The court ruled that the NMFS had impermissibly failed to issue a negligible impact finding under the MMPA and failed to find that there would be a reduction in takes of North Atlantic right whales rather than just setting the take limit to zero. Additionally, the court ruled that NMFS had failed to establish that the 2021 Final Rule and the 2021 Biological Opinion (BiOp) would reduce takes of the whales in the appropriate time frame. The court remanded the case back to the NMFS to remedy the existing errors.

3. District 4 Lodge of the Int’l Ass’n of Machinists and Aerospace Workers Local Lodge 207 v Raimondo

A union of lobster fishers, industry groups, and an individual lobster fisher challenged NMFS’s regulation prohibiting lobster fishing with vertical buoy lines in certain areas and seasons in order to protect endangered North Atlantic right whales. The U.S. District Court for the District of Maine entered a preliminary injunction enjoining enforcement of the regulation, and NMFS appealed. After temporarily staying the preliminary injunction, the First Circuit held that NMFS acted within its discretion in implementing the regulation.

4. Maine Lobstermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv.

In a prior action, NMFS’s BiOp was found to have violated the ESA by failing to satisfy the “negligible impact” requirement of the MMPA. Lobster fishing and industry groups, and the State of Maine, argued that the NMFS rule was arbitrary and capricious under the APA and overstated their impact on North Atlantic right whales. The plaintiffs moved for summary judgment and the defendants cross-moved. The court found that the plaintiffs failed to show that NMFS’s actions were arbitrary and capricious, and granted summary judgment to the defendants.

5. Sea Shepherd New Zealand v. United States

Conservation groups sued various U.S. government departments and the New Zealand government over purported threats to the Māui dolphin from certain fisheries. The conservation groups sued the U.S. under the MMPA because certain fisheries operating in Māui dolphin habitat cause injuries and deaths to the dolphins in excess of U.S. standards. The Court of International Trade found that the MMPA was clear that “‘the wellbeing of marine mammals takes precedence,’” and therefore that a preliminary injunction — banning imports of associated fish and fish products — was in the public interest. The ban will remain in place until the U.S. makes a valid finding that New Zealand’s regulatory program for the fisheries is comparable to the U.S. regulatory program or the conservation groups’ remaining claims are resolved.

B. Administrative Developments

In 2016, NMFS published a Final Rule implementing the MMPA Import Provisions, which prohibit the import of fish or fish products from commercial fishing operations that result in the incidental mortality or serious injury of marine mammals in excess of U.S. standards. On October 21, 2022, NMFS and NOAA published a Final Rule revising the regulations implementing the import provisions of the MMPA. The Final Rule extends the exemption period by one year to December 31, 2023, to allow foreign nations additional time to develop regulatory programs comparable in effectiveness to U.S. regulations.

Endangered Species Act

A. Judicial Developments

1. Man Against Xtinction v. Massachusetts Port Auth.

A private citizen sued the Massachusetts Port Authority (Massport), alleging that vessels transiting to and from the Port of Boston injured or killed endangered North Atlantic right whales in violation of the ESA. The court determined that Massport was not liable under the ESA or state-law tort claims because it neither operates nor has authority to regulate any of the vessels that might encounter the whales while in port. The citizen moved for leave to amend his complaint and to request an injunction requiring Massport to conduct port operations in a whale-safe manner. Both were denied.

2. Hueter v. Haaland

Several Alega Village, American Samoa, residents sued unnamed private fishers for illegally fishing in the Alega Marine and Wildlife Sanctuary Reserve (Alega Reserve), a privately-owned marine protected area, and numerous U.S. and American Samoa government officials for failing to enforce environmental laws against the fishers in violation of the residents’ due process rights. The residents claimed that the fishers violated the ESA by harming endangered sea turtles within the Alega Reserve, the National Marine Sanctuaries Act by damaging the Alega Reserve itself, and the Marine Protection, Research, and Sanctuaries Act by discharging oil from their boats in the reserve. The court granted the government’s motion to dismiss and removed the federal defendants from the case. The American Samoa government officials also moved to dismiss, which the court held in abeyance until the court determines whether the unnamed fishers are sufficiently identified, and whether there is a cognizable federal claim against the fishers.

3. Atl. Salmon Fed’n U.S. v. Merimil Ltd. P’ship

Several conservation groups sued the owners/operators of four hydroelectric dams on the Kennebec River in Maine, alleging that the dams resulted in the unlawful take of Atlantic salmon in violation of the ESA. NMFS authorized the dam owners/operators to incidentally take Atlantic salmon through dam operations through 2019. The dam owners/operators now sought to renew their incidental take authority, but have not stopped or altered their operations. The conservation groups sought a preliminary injunction to limit dam operations in the meantime, which the court denied. The court agreed that there is a likelihood of success on the merits; however, the court found that the record did not show that the proposed preliminary injunction would reduce the take of salmon to an extent that would prevent likely and irreparable harm to the Gulf of Maine Distinct Population Segment as a whole. The court reasoned that a preliminary injunction would neither further the public interest nor be equitable.

4. Nat. Res. Def. Council, Inc. v. Coit

In 2013, several conservation groups petitioned NMFS to list the alewife and blueback herring as threatened under the ESA. When NMFS declined to list the species, the conservation groups claimed the decision was arbitrary and capricious under the APA. The court vacated the decision and remanded to the agency for further analysis. In 2019, NMFS again determined that a threatened or endangered listing was not warranted. In March 2022, the court determined that NMFS provided adequate explanation for the foreseeable future timeframes. However, the court remanded to the agency for further explanation as to why NMFS found the Southern New England blueback herring population to not be a distinct population segment and did not assess the population under NMFS’s significant portion of its range policy.

5. Fish Nw. v. Rumsey

A Washington court granted summary judgment to NMFS in an action filed by a recreational fishing organization challenging actions related to the management of Puget Sound Fisheries. The group alleged that NMFS violated § 7(a)(2) of the ESA by failing to ensure that its actions in a 2021 BiOp for resource management plans for salmon and steelhead gillnet fisheries did not jeopardize ESA-listed Chinook salmon. The court dismissed this claim for lack of notice. The group next claimed that the 2021 BiOp violated the APA. The court found this claim was not supported by the record and, therefore, the BiOp was not arbitrary and capricious.

6. Wild Fish Conservancy v. Thom

The court granted summary judgment to a conservation group in a challenge to NMFS’s 2019 BiOp for the Alaska Chinook salmon commercial troll fishery. The court adopted a magistrate’s report stating the BiOp was arbitrary and capricious because the agency improperly relied on uncertain mitigation measures to find “no jeopardy” to the Southern Resident Killer Whale and failed to address whether a prey increase program would jeopardize the Chinook salmon evolutionary significant units. The court agreed that NMFS’s reliance on the BiOp resulted in a violation of § 7(a) (2) of the ESA. Further, NMFS violated the National Environmental Policy Act (NEPA) by failing to conduct analysis for the issuance of the incidental take statement in the BiOp. The court asked the magistrate to submit an additional report and recommendation to the court with an appropriate remedy for the agency’s violations.

7. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist.

Several advocacy organizations sued the U.S. Bureau of Reclamation (BOR) and the Santa Maria Water Conservation District (SMWCD), claiming that the operation of a dam interfered with Southern California Steelhead reproductive migration and resulted in an unlawful take in violation of the ESA. The district court granted summary judgment to the agencies. On appeal, the Ninth Circuit reversed and held that the relevant statute, Public Law 774, affords the BOR and the SMWCD discretion to manage and operate the dam to prevent the take of Southern California Steelhead. The court held that the agencies can operate the dam for other purposes besides “irrigation, conservation, and flood control,” which include adjusting water discharges to support the migration and reproduction of Southern California steelhead.

8. Save the Bull Trout v. Williams

The Ninth Circuit dismissed an action challenging the U.S. Fish and Wildlife Service’s (FWS) 2015 Bull Trout Recovery Plan under the ESA. In a previous related case in the U.S. District Court for the District of Oregon, the court determined that the plaintiffs failed to state a claim for violation of a nondiscretionary duty, precluding the court from exercising jurisdiction under the citizen suit provision of the ESA. Accordingly, the court dismissed the plaintiffs’ claims for lack of jurisdiction, but granted the plaintiffs leave to amend. The plaintiffs declined to amend and instead initiated a new suit in the U.S. District Court for the District of Montana, again challenging FWS’s compliance with the ESA in creating the 2015 Bull Trout Recovery Plan and adding Save the Bull Trout as a plaintiff. The court concluded the plaintiffs’ challenge to the 2015 Bull Trout Recovery Plan was precluded because the Oregon district court’s opinion was a final judgment on the merit of the claims and dismissed the complaint.

B. Administrative Developments

On July 21, 2022, FWS announced it was rescinding the rule titled “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat,” which became effective January 19, 2021. The rule set forth new regulations addressing how FWS excluded areas of critical habitat under § 4(b)(2) of the ESA, outlining when and how FWS will undertake an exclusion analysis. This action removed the regulations established by that rule and became effective on August 22, 2022.

 Offshore Wind Energy

A. Judicial Developments

1. Kinsella v. Bureau of Ocean Energy Management

A resident of East Hampton, New York brought suit under the APA challenging the Bureau of Ocean Energy Management’s (BOEM) approval of the South Fork offshore wind energy project off the coast of Long Island. The plaintiff claimed BOEM failed to consider environmental and economic impacts of the project and sought injunctive relief to stop construction. BOEM moved to transfer the case to the U.S. District Court for the Eastern District of New York. The court concluded that public-interest factors weighed heavily in favor of transfer, citing the local interest in having the controversy adjudicated locally, and the fact that the transferee court is more familiar with the issues.

2. In re Application of Icebreaker Windpower, Inc.

The Supreme Court of Ohio issued an opinion allowing North America’s first freshwater offshore wind project to go forward in Lake Erie. Residents of a village on Lake Erie’s southern shore appealed the Ohio Power Siting Board’s (Board) decision to grant a certificate of environmental compatibility and public need for Icebreaker Wind, a six turbine, 20.7-megawatt offshore wind project. The residents argued the Board had insufficient evidence to determine environmental impacts of the project on migratory birds and bats and that issuing the certificate violated the public trust doctrine. In a 6-1 opinion, the court found for the Board and for Icebreaker Wind, holding that the evidence supported the Board’s decision and that the Board had no authority to consider whether such a facility would violate the public trust doctrine.

3. Seafreeze Shoreside Inc. v. United States Department of the Interior

Two lawsuits were brought in district court in the District of Columbia against BOEM regarding the Vineyard Wind offshore wind farm off the coast of Massachusetts, south of Martha’s Vineyard. The first lawsuit was brought by a group of commercial fishermen, and the second was brought by a non-profit based in D.C. called the Responsible Offshore Development Alliance (RODA). Both lawsuits challenged the approval of Vineyard Wind under the Administrative Procedure Act (APA), the Outer Continental Shelf Lands Act (OCSLA), the Endangered Species Act (ESA), and the Clean Water Act (CWA). In both cases, Vineyard Wind filed motions to intervene, both of which were granted. The defendants moved to transfer both cases to the District of Massachusetts, where three other lawsuits regarding the Vineyard Wind project are pending, and both motions were granted. Despite the myriad of pending lawsuits seeking to stop the Vineyard Wind project, construction is ongoing. Vineyard Wind anticipates project completion in 2023, at which time it will begin supplying electricity to Massachusetts.

4. Siemens Gamesa Renewable Energy A/S v. General Electric Co.

On September 7, a Massachusetts District Court judge signed an order granting a permanent injunction against General Electric for their Haliade-X wind turbines. Siemens Gamesa Renewable Energy (SGRE) filed suit against GE for patent infringement in 2020 for two of its patents and requested a permanent injunction this year for GE’s use of their Haliade-X turbines. The judge determined that an injunction for the Haliade-X turbines was proper but carved out an exception for their use in the Vineyard Wind 1 project, allowing instead for royalties from the project to be paid to SGRE.

B. Legislative Developments

The 2022 Inflation Reduction Act (IRA) contains multiple provisions regarding offshore wind. Section 50265 limits BOEM’s power to issue leases for offshore wind development, authorizing such action only if BOEM has offered at least 60 million acres on the Outer Continental Shelf for oil and gas leasing within the last year. Section 50251(a) authorizes the issuance of leases, easements, and rights-of-way in areas off the coasts of North and South Carolina, Georgia, and Florida that President Trump had withdrawn from leasing disposition under the Outer Continental Shelf Lands Act (OCSLA). However, these areas may not be used for oil and gas leasing. The IRA also promotes offshore wind projects surrounding U.S. territories where feasible sites exist and there is interest, and provides $100 million in funding for research and analysis of transmission infrastructure. Finally, the IRA provides tax credits for project developers and manufacturers to promote offshore wind projects in the U.S.

C. Administrative Developments

On September 15, the Biden-Harris Administration announced it is supporting initiatives to develop offshore wind projects it hopes will generate 15 gigawatts of energy to power five million homes by 2035. The Administration is focusing on floating platforms for deep-water wind projects, particularly in New England and the West Coast.

D. State Efforts

On June 17, South Carolina Governor Henry McMaster signed into law House Bill 4831, a joint resolution directing the state’s Department of Commerce to “conduct an economic development study to evaluate the state's business advantages, economic climate, workforce readiness, and any other relevant state assets to create a roadmap [for South Carolina] to effectively compete in attracting offshore wind energy supply chain industries to the State. The bill was passed shortly after BOEM auctioned off two lease areas for offshore wind projects in the Carolina Long Bay area off North and South Carolina.

In July, Rhode Island’s governor signed into law a bill requiring the state’s primary utility company to procure between 600 and 1000 MW of new offshore wind energy. The state’s request for proposals was released on October 14.

On August 11, the governor of Massachusetts signed into law An Act Driving Clean Energy and Offshore Wind. The Act codifies the state’s goal of procuring 5,600 MW of offshore wind energy by June 2027, removes the price cap for developers submitting bids, adds potential for transmission infrastructure development and procurement, and provides tax credits for certain offshore wind developers through a new state-run offshore wind investment program.

In March, the Hawaii Senate passed SB2535 SD2, which establishes the number of miles from the shore of a main Hawaiian island where offshore wind turbines may be sited. The goal of the bill is to promote a transition in Hawaii from fossil fuels to clean energy in order to lower the cost of living for Hawaii residents, reduce the impacts of energy production on communities in Hawaii that have hosted fossil fuel plants, and protect Hawaii’s coastline and nearshore areas by ensuring offshore wind projects are situated sufficiently offshore. The bill as amended did not specify the distance offshore wind projects must be, leaving it to the House to determine a limit. The House deferred the bill on March 17.

E. Projects

1. New England Projects

Avangrid Renewables, the company who partnered with Copenhagen Infrastructure Partners to create the Vineyard Wind 1 project in Massachusetts, has announced that their projects Park City Wind and Commonwealth Wind will each be delayed a year, beginning operations in 2027 and 2028, respectively. Avangrid stated that increasing prices for materials have made their original estimates infeasible, but that they would continue with the projects.

2. California

On December 7, the Department of the Interior announced the winners of BOEM’s auction for five offshore leases. The five leases covered a total of 373,268 acres off central and northern California and generated $757.1 million. This is the first lease auction for leases off the coast of the Pacific, and the Administration believes the high dollar amount of the bids is an encouraging sign of the country’s progress in moving toward offshore wind generation.

Oil and Gas in the Marine Environment

A. Judicial Developments

1. Friends of the Earth v. Haaland

Several advocacy groups challenged a lease sale of 80.8 million acres in the Gulf of Mexico, the largest offshore oil and gas lease sale in U.S. history. The groups alleged violations of NEPA and the APA. The court determined that the model BOEM used to exclude foreign consumption from the greenhouse gas emissions calculation in the EIS was arbitrary and capricious. The court reasoned that BOEM should have given a quantitative estimate of the downstream greenhouse emissions that would result from the reduced foreign consumption or explained more specifically why it could not have done so. Further, BOEM could not rely on a NEPA determination as a substitute for an EIS without first providing an opportunity for public comment. The court vacated the lease sale and remanded to BOEM to remedy its NEPA errors.

2. Savage Servs. Corp. v. United States

Owners and operators of an inland towing vessel brought suit against the United States under the Suits in Admiralty Act (SAA) and the Federal Tort Claims Act (FTCA) to recover damages from an oil spill allegedly caused by the U.S. Army Corps of Engineers’ negligent operation of a lock. The Eleventh Circuit held that, as a matter of first impression, the Oil Pollution Act (OPA) did not create a cause of action for responsible parties to seek contribution from the United States government or allow the responsible party to escape all liability by asserting the federal government’s negligence. Finally, as a matter of first impression, OPA displaced any claim the plaintiffs may have brought under common law or the SAA.

3. Environmental Defense Center v. Bureau of Ocean Energy Management

After being sued by several environmental groups, federal agencies, including BOEM, conducted an environmental review of the authorization of unconventional oil drilling methods in the Pacific Outer Continental Shelf. The agencies issued a finding of no significant impact (FONSI), and the environmental groups sued again on the grounds that the review was inadequate and violated NEPA, the ESA, and the Coastal Zone Management Act (CZMA). The Seventh Circuit Court of Appeals ruled that the agencies had violated NEPA by relying on incorrect assumptions about the frequency of well stimulation treatments, failing to consider the full range of alternatives, and not preparing a full EIS. The court then held that the agencies had violated the ESA by not engaging in the consultation process to determine if a species would be adversely affected. The court also held that the agencies had violated the CZMA by not preparing a review of the impacts their actions would have on the California coastal zone.

4. State of Louisiana v. Biden

The Fifth Circuit vacated and remanded a federal district court’s June 15, 2021 nationwide preliminary injunction enjoining President Biden and various governmental officials from pausing oil and gas leasing on public lands and in offshore waters following the President’s issuance of Executive Order 14,008 (EO). The government appealed the district court decision, arguing that the district court’s order enjoins the EO itself, which is not subject to judicial review. The states who challenged the EO argued that the injunction instead enjoins the “unwritten but conspicuous nationwide lease-sale ‘Pause’ as final agency action reviewable under the APA.” The court found that the district court’s order and accompanying memorandum did not define “Pause” with specificity, leading the parties to differ in their interpretations. The court held that the district court’s injunction failed to meet the requirements of Rule 65(d) of the Federal Rules of Civil Procedure because the court was unable to ascertain exactly what conduct was enjoined.

5. In re Deepwater Horizon

Loggerhead Holdings, Inc., which owned a scuba diving cruise business, brought suit against BP oil for economic and physical damages resulting from the Deepwater Horizon oil spill, asserting claims under the Oil Pollution Act (OPA). BP filed a motion for summary judgment, and the district court granted the motion. On appeal, the Fifth Circuit applied the “substantial-nexus test” established by the U.S. Supreme Court to the Section 2702 (b)(2)(E) claim, which required a “significant causal link” to determine whether the oil damage Loggerhead’s vessel Rorqual encountered was due to the Deepwater Horizon oil spill. On the claim for economic damages, the court held that the district court erred because there is a genuine issue of material fact as to whether a reasonable factfinder could find a causal link between the Deepwater Horizon oil spill and Loggerhead’s business failure. On the claim for physical damages, the evidence provided by Loggerhead was “so weak or tenuous” that it could not defeat the motion for summary judgment.

6. Gulf Restoration Network v. Haaland

The U.S. Court of Appeals for the District of Columbia upheld two 2018 offshore oil and gas lease sales in the Gulf of Mexico. Several environmental organizations filed suit, claiming that BOEM’s lease sales were based on arbitrary environmental assessments in violation of NEPA. The U.S. District Court for the District of Columbia ruled in favor of the federal agencies. On appeal, the court held that BOEM adequately considered a no-action alternative and was not required to consider potential changes to the Bureau of Safety and Environmental Enforcement’s (BSEE) safety rules. However, the court found that the agency acted arbitrarily when it declined to address a Government Accountability Office (GAO) report criticizing BSEE enforcement of existing safety and environmental regulations. The court remanded the case for further consideration of the GAO report.

B. Legislative Developments

As discussed in the Offshore Wind section, the 2022 Inflation Reduction Act (IRA) paired offshore oil and gas development with offshore wind. Section 50265 limits BOEM’s power to issue leases for offshore wind development only if BOEM has offered at least 60 million acres on the Outer Continental Shelf for oil and gas leasing within the last year.

C. Administrative Developments

On July 1, 2022 BOEM announced the availability of the Proposed Program for the 2023-2028 National Outer Continental Shelf Oil and Gas Leasing Program, as well as the Draft Programmatic EIS for the 2023-2028 Program. BOEM published the Notice of Availability (NOA) for the drafts in the Federal Register on July 8, 2022. The 90-day public comment period closed on October 6, 2022.

The Proposed Program provides for no greater than ten potential lease sales in the Gulf of Mexico and an optional lease sale in the northern portion of the Cook Inlet of Alaska. BOEM has not proposed any other lease sales, meaning there are no proposed sales for the other Alaska planning areas or the Atlantic or Pacific planning areas during the five-year period. BOEM noted that an area included in the Proposed Program did not indicate that it would be included in the approved final plan. However, areas and sales not included in the Proposed Program will not be included in the approved plan.