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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Oceans and Coasts Committee Report

Catherine M Janasie, Ashley Stilson, AnnaGrace Meeks, Jon Scoggins, Kaitlin Shaw, Madison Vice, and Matthew Noble Sheffield


  • The Oceans and Coasts Committee Report for The Year in Review 2023.
  • Summarizes significant legal developments in 2023 in the area of oceans and coasts, including marine mammals, aquaculture, offshore wind, and more.
Oceans and Coasts Committee Report
Alex Walker via Getty Images

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I. Fisheries

A. Judicial Developments

1. A.P. Bell Fish Co., Inc. v. Raimondo

The U.S. District Court for the District of Columbia granted summary judgment in favor of NMFS after commercial fishermen and a trade association challenged Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. NMFS created Amendment 53 when, in the evaluation of stock assessment using new technology, it found that annual catch limits of red grouper needed to be altered. The plaintiffs alleged that the implementation of these new catch limits substantially decreased the allowed catch of red grouper in the commercial industry while simultaneously increasing the allowed catch of the same fish within the recreational industry. The plaintiffs argued that the change in allocation did not promote conservation or adhere to legal requirements mandated by the MSA, and the new allocation was based on bad data. Furthermore, the plaintiffs argued that the Amendment unfairly disadvantaged the commercial sector. In its analysis, the court found the plaintiffs’ challenges to the Amendment to be incorrect and unreasonable, stating that NMFS acted neither arbitrarily nor capriciously but within the scope of its authority and adhered to national standards.

2. Sea Shepherd New Zealand v. United States

In November 2022, the Court of International Trade issued a preliminary injunction ordering the immediate ban on imports into the United States of fish and fish products deriving from nine fish species caught in New Zealand’s West Coast North Island inshore trawl and set net fisheries, unless affirmatively identified as having been caught with a gear type other than gillnets or trawls. The Government of New Zealand petitioned the court to modify the preliminary injunction to allow New Zealand a grace period to implement a “traceability system.” The court denied the request, noting the government did not make a requisite showing of “changed circumstances” that would allow a modification of the preliminary injunction.

3. Fishermen's Finest, Inc. v. United States

The Federal Circuit Court of Appeals recently affirmed the Federal Claims Court’s dismissal of several fishing companies’ Fifth Amendment takings claim because they did not possess any cognizable property interests in their fishing permits, licenses, and endorsements. Central to the plaintiffs’ claims was the Frank LoBiondo Coast Guard Authorization Act (Coast Guard Act), which limits the number of fish that vessels could collectively harvest and process in federally managed areas, such as the United States’ Exclusive Economic Zone (EEZ). The plaintiffs alleged that the Coast Guard’s limits on the number of fish that their vessels could collectively harvest and process within the EEZ amounted to an unlawful, uncompensated taking that deprived them of the full scope of its rights under its endorsements, licenses, and permits, and devalued its vessels. The court held that because there is no express language or other indication of intent to limit Congress’s legislative power to determine licensing privileges under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the Coast Guard Act’s limitation on the companies’ aggregate catch totals did not amount to any taking of compensable property. The court further clarified that fishing permits and licenses issued pursuant to the MSA are revocable privileges, rather than compensable property interests.

4. Mexican Gulf Fishing Co. v. U.S Department of Commerce

Several charter fishing companies that operate in the Gulf of Mexico filed a class action complaint challenging a final rule requiring charter boat owners to install vessel monitoring systems (VMS) that would record and transmit GPS-location information. The final rule also required charter boat owners to report information about fishing yields and certain economic information related to charter trips. However, the district court denied the companies’ summary judgment motion and granted summary judgment in favor of the government. On appeal, the companies’ challenge was primarily focused on the GPS-tracking requirement, alleging that it violated the Fourth Amendment, exceeded the authority granted by the MSA, and violated the Administrative Procedure Act (APA) by being arbitrary and capricious. While the Fifth Circuit did not reach the constitutionality question, the court concluded that the MSA does not authorize the government to promulgate a GPS-tracking requirement because VMS devices are not “equipment” furthering the regulatory goals of the MSA, nor are they “necessary and appropriate” to further those goals. The Fifth Circuit reversed the district court’s judgment and set the final rule aside.

5. Relentless, Inc. v. U.S Department of Commerce

The owners of two fishing vessels that harvest herring (collectively, “Relentless”) challenged NMFS’s authority to promulgate a final rule under the MSA that requires fishing vessels to carry monitors on board in certain circumstances. The final rule also requires vessel owners to pay for monitors in certain instances by contracting with private entities. The U.S. District Court for the District of Rhode Island ruled in favor of the government, concluding that the final rule is a permissible exercise of NMFS’s authority and is otherwise lawful. On appeal, Relentless argued that the final rule violated the MSA, APA, Regulatory Flexibility Act (RFA), and Commerce Clause of the U.S. Constitution. The court found that because Congress expressly authorized NMFS to require vessels to carry monitors, and because NMFS’s interpretation of that authority does not depend on its payment of the costs, the final rule is authorized by the MSA. Further, the rule does not violate MSA’s National Standards. The court also found that because NMFS had a rational basis for adopting the rule, the rule is not arbitrary and capricious in violation of the APA. The court concluded that the rule does not violate the RFA because NMFS considered and responded to comments and evaluated the impact of its action on small businesses. Lastly, because Relentless is not being forced to participate in the market, the rule does not violate the Commerce Clause. Accordingly, the First Circuit Court of Appeals affirmed.

6. Center for Biological Diversity, et al. v. Haaland

Three environmental groups filed suit to compel the Department of the Interior to respond to its petition regarding the “take” and “trade” of endangered totoaba in Mexico, which threatens the endangered vaquita porpoise. The groups claimed that the take and trade of the species diminishes the effectiveness of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). On May 18, 2023, the Secretary of the Interior certified to President Biden that “nationals of Mexico are engaging in taking and trade of the totoaba fish ... and the related incidental take of vaquita ... that diminishes the effectiveness” of CITES. Following the Secretary’s certification, the parties agreed to dismiss the case with prejudice.

7. Louisiana Department of Wildlife & Fisheries v. National Oceanic & Atmospheric Administration

In December 2019, NMFS promulgated a rule requiring certain shrimping vessels in Louisiana to use turtle excluder devices (TEDs) on all skimmer trawlers over 40 feet, including those that operate inshore. Louisiana’s Department of Wildlife and Fisheries sued NMFS under the APA, challenging the rule as arbitrary and capricious. The district court found that Louisiana lacked standing to challenge the rule. On appeal, Louisiana argued that it had standing on four bases: the final rule preempts state laws regulating the harvest of shrimp in Louisiana waters, Louisiana has an interest in regulating marine resources, the state has a sovereign interest in the shrimp in its waters, and the rule interferes with Louisiana’s enforcement of its wildlife laws. The U.S. Court of Appeals for the Fifth Circuit rejected each of these arguments.

8. North Carolina Coastal Fisheries Reform Group v. Captain Gaston LLC

An environmental organization brought suit alleging shrimp trawlers were violating the Clean Water Act (CWA) by throwing bycatch overboard and by disturbing sediment with their trawl nets. The U.S. District Court for the Eastern District of North Carolina dismissed the suit. On appeal, the Fourth Circuit affirmed. The court stated that the issue required the court to apply the major-questions doctrine in interpreting the CWA. The court found that the return of bycatch to the ocean was not a discharge of a “pollutant” that would require compliance with the CWA. Sediment from the lagoon floor that was temporarily suspended in the water due to the trawl nets was not “dredged spoil,” and, therefore, not a “pollutant” that required a CWA discharge permit. And, even if sediment from the lagoon floor was a pollutant, the trawlers did not “discharge” it.

9. Massachusetts Lobstermen's Association, Inc. v. National Marine Fisheries Service

After NMFS announced that it would close an area off the coast of Massachusetts to lobster fishing from February 1 to April 30, 2023, the Massachusetts Lobstermen’s Association filed suit, arguing that the closure is inconsistent with a provision in the Consolidated Appropriations Act of 2023. NMFS moved to dismiss the case as moot because the closure ended on April 30th. The court agreed and granted the motion.

B. Legislative Developments

On May 10, 2023, Rhode Island Senator Jack Reed introduced the Rhode Island Fisherman’s Fairness Act of 2023, which would amend the Magnuson-Stevens Fishery Conservation and Management Act to add Rhode Island to the Mid-Atlantic Fishery Management Council, and for other purposes. Rhode Island Rep. Seth Magaziner introduced a similar bill to the House on the same day.

On June 12, 2023, Virginia Rep. Rob Wittman introduced the Supporting the Health of Aquatic systems through Research Knowledge and Enhanced Dialogue Act or the “SHARKED” Act which would amend Section 318(c) of the MSA to address shark depredation, a concern of the fishing community. Depredation is “the partial or complete removal of a captured species by a shark” and a goal of the legislation is “to establish a task force of fisheries managers and shark experts responsible for improving coordination and communication on shark depredation across the fisheries management community.”

These acts have not yet cleared their respective committees.

C. Administrative Developments

On September 18, 2023, NMFS and the National Oceanic and Atmospheric Administration (NOAA) published the proposed rule for the Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations. The proposed rule would expand the boundaries of the Massachusetts Restricted Area to include the Massachusetts Restricted Area Wedge, which is an area between state and federal waters. Emergency Rulemaking closed this area in 2022 and 2023 due to the immediate risk to North Atlantic right whales caused by buoy lines in the area. The proposed rule takes into account that this risk is expected to recur annually.

On October 19, 2023, NMFS and NOAA published a proposed rule to prohibit commercial fishing in the Northeast Canyons and Seamounts Marine National Monument. The proposed rule is meant to align U.S. fishing regulations with Presidential Proclamations 9496 and 10287, which prohibited commercial fishing in the Northeast Canyons and Seamounts Marine National Monument.

II. Marine Mammals and the Marine Mammal Protection Act

A. Judicial Developments

1. Center for Biological Diversity v. Raimondo

The Center for Biological Diversity sued NMFS for violating the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA) concerning commercial fishing operations in the sablefish pot fishery spanning Washington, Oregon, and California. The group challenged NMFS’s issuance of a permit that authorized the incidental taking of ESA-protected humpback whales in the pot fishery as unlawful pursuant to the MMPA and ESA because NMFS failed to ensure that a take reduction plan for the whales was being developed. NMFS argued that it was not required to develop a take reduction plan for the whales because it lacked the funding to do so, citing section 1387(f)(1) of the MMPA, which allows the agency to “set priorities for developing take reduction plans and not develop a reduction plan at all if there is insufficient funds.” The court determined that the plain language of section 1387 directs that NMFS “shall develop and implement a take reduction plan” for strategic stocks in commercial fisheries that involve occasional incidental injury or death to marine mammals; therefore, NMFS was required by statute to develop a take reduction plan for the incidental taking of humpback whales in the sablefish pot fishery.

2. Sea Shepherd New Zealand v. United States

Sea Shepherd New Zealand and Sea Shepherd Conservation Society filed suit claiming that the U.S. Department of Commerce is required to ban imports of fish and fish products from New Zealand under the MMPA due to the decline of the Māui dolphin population caused by bycatch in gillnet and trawl fisheries. The MMPA mandates a ban on the importation of fish caught with technology that results in incidental kill or incidental serious injury of ocean mammals in excess of U.S. standards. The court granted a preliminary injunction temporarily banning imports into the United States of fish and fish products deriving from nine species caught in New Zealand’s West Coast North Island inshore trawl and set net fisheries. The government motioned to dismiss as moot the plaintiff’s claim that the government acted arbitrarily, capriciously, and otherwise not in accordance with the law in issuing findings of comparability with U.S. standards because the relevant comparability findings expired in January of 2023. The U.S. Court of International Trade denied the motion to dismiss.

B. Administrative Developments

NMFS issued a final rule, effective November 17, 2023, that revised regulations related to import provisions governed by the MMPA, extending the two-year exemption period. In 2016, the NMFS enacted a rule that outlines criteria for assessing the efficacy of harvesting nations’ regulatory programs compared to U.S. regulations and establishes the procedure for determining comparability findings. The rule specifies that importing fish or fish products from listed fisheries in the List of Foreign Fisheries into the U.S. is contingent upon the harvesting nation applying for and obtaining a comparability finding from NMFS. However, under the 2016 rule, the import prohibition had a five-year exemption period, allowing harvesting nations sufficient time to evaluate marine mammal stocks, estimate bycatch, and create regulatory programs to alleviate such bycatch. In 2020 and 2022, NMFS further prolonged the exemption period. NMFS has currently received 134 applications from nations with roughly 2,500 fisheries, causing the NMFS to extend the exemption period by another two years until December 31, 2025. This extension aims to accommodate the extensive number of foreign fisheries, the dynamic nature of fisheries data, and the practical challenges in evaluating the comparability of regulatory programs in foreign countries.

III. Endangered Species Act

A. Judicial Developments

1. Center for Biological Diversity v. U.S. Maritime Administration

To relieve landside congestion along coastal corridors, Congress enacted the U.S. Marine Highway Program, authorizing the U.S. Department of Transportation (DOT) to provide grants to projects that develop, expand, or promote marine highway transportation. The Center for Biological Diversity brought a citizen suit alleging that the agency’s failure to engage in consultation for the U.S. Marine Highway Program as a whole, as well as the James River Container Expansion Project, which encompasses a critical habitat of the endangered Atlantic sturgeon species, violated the consultation requirements of section 7 of the ESA. The court determined that although consultation for the entire Marine Highway Program is not required under the ESA, the agency is nevertheless required to engage in section 7 consultation of individual projects. Accordingly, the court found that the agency’s failure to conduct a consultation of the James River Container Expansion Project to be in violation of the ESA. The Center for Biological Diversity has filed an appeal.

2. Wild Fish Conservancy v. Rumsey

The U.S. District Court for the District of Washington adopted a magistrate’s report in a lawsuit related to NMFS 2019 Southeast Alaska Biological Opinion (BiOp) evaluating the effects of the Southeast Alaska salmon fisheries on threatened and endangered species. The court remanded the BiOp to NMFS to remedy violations of the ESA and the National Environmental Policy Act (NEPA). The court vacated the incidental take statement authorizing the “take” of the Southern Resident Killer Whale and Chinook salmon for the Chinook summer and winter commercial troll fishery. The case has been appealed to the Ninth Circuit.

3. Fish Northwest v. Rumsey

The U.S. Court of Appeals for the Ninth Circuit affirmed and adopted a district court’s opinion granting 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 ESA section 7(a)(2) by failing to ensure that its actions in a 2021 BiOp for resource management plans for salmon and steelhead gillnet fisheries do not jeopardize listed Chinook salmon. The district court dismissed this claim for lack of notice and found the claim was not supported by the record.

4. Maine Lobstermen’s Association v. National Marine Fisheries Service

NMFS issued a BiOp on the impact of the lobster and Jonah crab fisheries on the North Atlantic Right Whale population. Data on the North Atlantic Right Whale entanglement is limited, so NMFS relied on a “scarring analysis” from a 2019 study, concluding that the fishing gear in the lobster and Jonah crab fisheries kill about 46 North Atlantic Right Whales each year. Shortly after, NMFS promulgated a final rule implementing a Conservation Framework designed to be implemented in four stages to reduce right whale entanglements to near zero by 2030. The Maine Lobstermen’s Association brought an action under the ESA challenging the BiOp and phase one rule implementing the take- reduction plan. Other lobstermen groups and Maine’s Department of Marine Resources intervened as plaintiffs, and conservation groups intervened as defendants. The U.S. Court of Appeals, District of Columbia Circuit held that NMFS may not give an endangered species the “benefit of the doubt” by relying on worst-case scenarios or pessimistic assumptions and remanded the case.

5. El Puente v. U.S. Army Corps of Engineers

The U.S. District Court for the District of Columbia granted the U.S. Army Corps of Engineers’ motion for summary judgment in a lawsuit over the San Juan Harbor Navigation Improvements Project. The project involves deepening and widening current shipping channels by dredging and then disposing of the dredged material in a designated ocean disposal site. Environmental groups alleged that the government violated NEPA and the ESA in approving the project. The court disagreed and found that the Corps adequately considered environmental concerns, including impacts on endangered coral and sea turtles, in a 2018 environmental analysis. The decision has been appealed.

6. Sovereign Inupiat for a Living Arctic v. Bureau of Land Management

The U.S. District Court for the District of Alaska dismissed a lawsuit brought by a tribe and an environmental group challenging the Bureau of Land Management’s (BLM) Record of Decision and Final Supplemental Environmental Impact Statement and the U.S. Fish and Wildlife Service’s (FWS) BiOp regarding the Willow Project in the National Petroleum Reserve in Alaska. The court found that BLM complied with the NEPA and Naval Petroleum Reserves Production Act by considering a reasonable range of alternatives and adequately analyzing greenhouse gas emissions from future oil developments. Furthermore, the court concluded that BLM took steps to minimize impacts on subsistence uses as required by Section 810 of the Alaska National Interest Lands Conservation Act. Additionally, despite finding errors in FWS’s interpretation of “harassment” under the ESA, the court upheld the BiOp, determining that the FWS adequately considered various factors and that the BiOp was not arbitrary or capricious. As a result, the court denied the request for vacatur and dismissed the plaintiffs’ claims with prejudice. The decision has been appealed.

7. White v. U.S. Army Corps of Engineers

A Mendocino County resident filed suit arguing that flood control releases from the Coyote Valley Dam into the Russia River violated the ESA due to impacts on protected salmonids. The Russia River is a designated critical habitat for three species of salmonids, specifically, the Central California Coast Steelhead (threatened), the Central California Coast Coho (endangered), and the California Coast Chinook Salmon (threatened). The plaintiff moved for an injunction pursuant under the ESA, arguing that the increase in turbidity in the river led to negative impacts, such as a decrease in salmonid embryo survival and available space. The court denied the plaintiff’s motion for an injunction because he did not establish that the salmonids were facing “serious or extreme” harm due to the flood control releases, and he failed to prove that the injunction would remedy the harm to the salmonids.

B. Administrative Developments

On June 22, 2023, the FWS, National Oceanic and Atmospheric Administration (NOAA), and the NMFS proposed to revise the interagency consultation rule under section 7 to clarify “effects of the action” and “environmental baseline,” remove 402.17 “Other Provisions,” clarify consultation responsibilities for the agencies, and revise provisions concerning incidental take statements, specifically reasonable and prudent measures.

The Services also proposed to revise the rule governing how species are listed and reclassified and how critical habitats are designated. They intend to reintroduce previous language that emphasizes listing decisions made “without reference to possible economic or other impacts of such determination,” revise the framework for assessing future possibilities, clarify the criteria for removing species from the list, and modify processes for designating critical habitats by reworking standards for determining when critical habitats might not be considered prudent and establishing criteria for identifying unoccupied critical habitats.

IV. Aquaculture

A. Judicial Developments

1. Don’t Cage Our Oceans v. U.S. Army Corps of Engineers

The U.S. District Court for the Western District of Washington denied the defendant’s motion to limit the scope of review to the administrative record regarding the U.S. Army Corps of Engineers’ issuance of Nationwide Permit 56. This permit allows commercial finfish mariculture facilities to operate in U.S. navigable waters. The court acknowledged that most claims should be evaluated based on the administrative record but found that the ESA citizen-suit claim might warrant a broader review. There are certain limited circumstances where extra-record evidence could be considered, so the court rejects the idea that Ninth Circuit precedence limits review to the administrative record.

2. Matter of Rulemaking to Amend Coastal Zone Management Rules

Bayside Shellfish, LLC (Bayside), an aquaculture business in New Jersey, sought to amend one of New Jersey’s Coastal Zone Management Rules to include aquaculture hatchery activities in a “permit by rule” category that covered aquaculture nursery activities. The Department of Environmental Protection (DEP) denied the petition, requiring the business to obtain a Coastal Area Facility Review Act (CAFRA) individual permit for hatchery activities. Bayside appealed the decision, alleging DEP’s denial was arbitrary, capricious, and unreasonable because it violated CAFRA’s express and implied legislative policies, and DEP’s findings were not supported by substantial evidence in the record. The New Jersey Superior Court deferred to DEP’s authority and affirmed the denial of Bayside’s rulemaking petition.

3. Wild Fish Conservancy v. Washington Department of Fish and Wildlife

An environmental group sued the Washington Department of Fish & Wildlife (WDFW), alleging that the Skykomish Program, a fish hatchery program, violates ESA Section 9, which prohibits the taking of endangered fish or wildlife species. The group further alleges that WDFW is engaged in a pattern and practice of implementing hatchery programs throughout the State of Washington that violates Section 9. The court held that the claims regarding the Skykomish Program are moot because WDFW has since obtained an exemption from Section 9 liability for its operation of the program, and any further relief granted by the court would serve no purpose because the plaintiff’s core objectives have already been met. The court granted the plaintiff leave to amend and supplement its complaint to include alleged violations of Section 9 that occurred after the initial complaint was filed. Accordingly, the group is free to incorporate its post-exemption allegations against the Skykomish Program into its Amended Complaint.

B. Legislative Developments

Rep. Barry Moore of Alabama introduced the Bringing Aquaculture Indemnities to Speed or BAITS Act. The bill aims to expand the Livestock Indemnity Program (LIP) to eligible producers of farmed fish, to protect them against loss or reduced sales due to specific events. This bill was referred to the House Committee on Agriculture, the Subcommittee on General Farm Commodities, Risk Management, and Credit, and the Subcommittee on Livestock, Dairy, and Poultry on April 28, 2023.

Sen. Susan Collins of Maine introduced the Relief for Farmers Hit with PFAS Act. The purpose of the act is to provide a program for governmental assistance to farmers whose agricultural products, including products of aquaculture, have been detrimentally affected by contamination from PFAS and related chemicals. The Act was referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

Reps. Jared Huffman and Mary Peltola introduced the Coastal Seaweed Farm Act of 2023. The purpose of the Act was to direct the Secretary of Agriculture and the NOAA Administrator to carry out a study on the farming of coastal seaweed, the regulation of the issues it would raise, establish an Indigenous Seaweed farming fund, as well as other purposes relevant to the administration of the Act. The Act was referred to the House Committee on Natural Resources, the Committee on Agriculture, and the Committee on Energy and Commerce. On March 17, 2023 it was referred to the Subcommittee on Environment, Manufacturing, and Critical Materials, and on April 14, 2023 to the Subcommittee on Water, Wildlife and Fisheries.

Representative Ed Case of Hawaii introduced the Saving NEMO Act, a bill meant to prohibit certain actions regarding certain marine reef species. Among other things, this bill would prohibit sale of certain species of corals and marine life unless they were raised by a qualified aquaculture or mariculture facility and did not contribute to the spread of harmful pathogens or environmental degradation. This bill was referred to the Committee on Natural Resources and the Ways and Means Committee.

C. Administrative Developments

In June, the Biden Administration announced it was beginning the development of the first U.S. Ocean Climate Plan and was accepting public comments for its priorities. Among the stated goals of the Ocean Climate Plan is utilizing climate-adaptive aquaculture as a means of meeting the seafood needs of the American public.

The year 2023 also marked the beginning of the five-year NOAA Aquaculture Strategic Plan. The plan is meant to set out a framework to support “a thriving, resilient, and inclusive U.S. aquaculture industry as part of a resilient seafood sector” and lays out specific goals to manage and sustainably grow the industry in the U.S.

V. Offshore Wind

A. Judicial Developments

1. Seafreeze Shoreside, Inc. v. U.S. Department of the Interior

Several fisheries brought a suit against the Bureau of Ocean Management (BOEM) and NMFS to challenge their approval of the Vineyard Wind Project, claiming it violated the MMPA, ESA, NEPA, and Outer Continental Shelf Lands Act (OCSLA). The plaintiff fisheries filed a motion for a stay to postpone the decision of defendant agencies to approve the Vineyard Wind construction and operation plan until all judgments and appeals are completed. Alternatively, plaintiffs requested a preliminary injunction to revert to the status quo before the construction and operation plan was approved. The U.S. District Court for the District of Massachusetts denied the plaintiffs’ motion for stay and preliminary injunction. It held that the plaintiffs could not demonstrate a likelihood that they would succeed on the merits and that plaintiffs would not suffer irreparable harm absent a stay. Additionally, the district court held that a stay would substantially injure the Vineyard Wind Project and that the construction of the offshore energy project is in the public interest due to climate impacts.

2. Seafreeze Shoreside, Inc. v. U.S. Department of Interior

The U.S. District Court for the District of Massachusetts denied two commercial fishing groups’ motions for summary judgment in a case challenging the Vineyard Wind project offshore Martha’s Vineyard. The groups claimed that the federal agencies’ issuance of permits and authorizations for the project violated the APA, ESA, MMPA, NEPA, OCLSA, and the Clean Water Act. The court noted that “the APA affords great deference to agency decision-making and agency actions are presumed valid.” The court found that the groups did not show that the defendants acted arbitrarily, capriciously, or otherwise unlawfully in issuing the permits and authorizations.

3. Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management

The Nantucket Residents Against Turbines (ACK RATs) brought suit alleging that BOEM and NMFS’s decisions approving a Vineyard Wind Project off the coast of Martha’s Vineyard and Nantucket were in violation of the ESA and NEPA because they were based on an inadequate environmental assessment and would harm the endangered Northern Atlantic Right Whale population. The U.S. District Court for the District of Massachusetts granted summary judgement in favor of the defendants, holding that the plaintiffs failed to demonstrate that the agencies violated the ESA or NEPA by issuing an inadequate BiOp and environmental impact statement for the offshore energy project. The decision has been appealed.

4. Melone v. Coit

A resident alleged that NMFS violated the MMPA and APA in issuing an Incidental Harassment Authorization (IHA) for the Vineyard Wind Project offshore of Martha’s Vineyard and Nantucket. Both sides moved for summary judgment. NMFS and Vineyard Wind asserted that the plaintiff lacked standing, and Vineyard Wind was entitled to summary judgment due to compliance with the MMPA. The resident claimed that he had standing because of his environmental interest in right whales and argued he was entitled to summary judgment and vacatur of the IHA because NMFS acted arbitrarily and capriciously in issuing the IHA. The U.S. District Court for the District of Massachusetts found that the plaintiff had standing but failed to show that NMFS acted arbitrarily, capriciously, or otherwise unlawfully in issuing the IHA. The plaintiff filed an appeal on September 8, 2023.

B. Administrative Developments

On January 30, 2023, BOEM issued proposed regulations to modernize its renewable energy “regulations to facilitate the development of offshore wind energy resources to meet U.S. climate and renewable energy objectives.” Proposed changes include: (1) eliminating unnecessary requirements for deploying meteorological buoys, (2) increasing survey flexibility, (3) improving the verification process for project design and installation, (4) establishing a Public Renewable Energy Leasing Schedule, (5) reforming BOEM's renewable energy auction regulations, (6) tailoring financial assurance requirements and instruments, (7) clarifying safety management system regulations, and (8) revising other provisions and making technical corrections.

On January 31, 2023, the Department of the Interior issued a final rule reassigning the renewable energy regulations pertaining to safety, environmental oversight, and enforcement from BOEM to the Bureau of Safety and Environmental Enforcement (BSEE). The rule parallels the roles of BOEM and BSEE in the oversight of oil and gas activities. Because the rule “reorganizes current regulations to be consistent with Departmental delegations without making substantive changes to those regulations or modifying substantive rights or interests,” the rule was exempt from notice-and-comment rulemaking requirements.

In 2023, South Fork Wind installed 12 offshore wind turbines and Vineyard Wind installed 62. BOEM approved four Construction and Operation Plans for offshore wind development (i.e., Ocean Wind 1, Revolution Wind, Empire Wind, and Coastal Virginia Offshore Wind) and issued corresponding Records of Decisions completing the NEPA process. NMFS issued biological opinions under the ESA for all four projects. NMFS also promulgated regulations under the MMPA and issued two letters of authorization under those regulations for the incidental taking of small numbers of marine mammals during the construction of the Ocean Wind 1 project and Revolution Wind project. However, in October 2023, Ocean Wind announced it is ceasing development of the project. Wind turbine foundation installation for Revolution Wind is anticipated to begin in 2024.

VI. Offshore Oil & Gas

A. Judicial Developments

1. United States v. Patriot Marine, LLC

Following an oil spill off the coast of Woods Hole, Massachusetts in January 2018, the Commonwealth of Massachusetts, and the United States brought separate suits under the Oil Pollution Act (OPA) and the Massachusetts Oil and Hazardous Material Release Prevention and Response Act. The court combined the complaints and, in 2022, granted declaratory judgment for the United States and Massachusetts. The court found Patriot Marine to be the responsible party liable for removal costs under OPA and state law. The United States moved for summary judgment on the issue of whether Patriot Marine could limit its liability under OPA. The court granted the United States’ motion for partial summary judgment, agreeing that the issue had already been litigated by a hearing officer, and Patriot Marine would not qualify to limit its liability pursuant to the OPA because it failed to report the incident.

2. Center for Biological Diversity v. Haaland

The U.S. District Court for the Central District of California rejected a motion to dismiss a case alleging that BOEM failed to review development and production plans (DPPs) for offshore oil platforms in two California counties. The plaintiff alleged that studies indicating that the platforms and pipelines have deteriorated in quality show that a review of the DPPs, if any, was inadequate. BOEM claimed the OCLSA citizen suit provision does not authorize suits against agencies for alleged failure to follow procedural requirements. The court disagreed, finding BOEM had a legal obligation to review the plans.

3. Alaska Industrial Development & Export Authority v. Biden

Several plaintiffs and the State of Alaska challenged President Biden's Executive Order 13990 and actions the U.S. Department of the Interior and BLM took to implement the order’s directive to place a temporary moratorium on the implementation of an oil and gas leasing program on the Coastal Plain of the Arctic National Wildlife Refuge. The plaintiffs filed a motion for summary judgment, and the defendants filed a cross-motion. The court denied plaintiffs’’and the state's motions and entered judgment in favor of the federal government.

4. United States v. Jacob

In 2006, a tanker carrying over 300,000 barrels of oil stranded “in navigable waters in an area containing coral reefs off the coast of Tallaboa, Puerto Rico.” The United States filed a complaint “seeking reimbursement and recovery of natural resource damages” under OPA. In 2022, the plaintiffs sought a partial summary judgment on the issue of whether the vessel’s grounding “constituted a ‘substantial threat’ of an oil discharge into navigable waters, thus establishing that Defendants were liable pursuant to OPA.” The defendants filed a motion to deny the judgment. The court granted the plaintiffs’ motion, agreeing that the Coast Guard’s determination that the grounding was a “substantial threat” was not arbitrary or capricious under the APA. An appeal has been filed in the case.

5. Louisiana v. Haaland

In August 2023, the State of Louisiana, along with multiple petroleum companies, filed a motion for preliminary injunction in federal district court to prevent BOEM from adding a term to the Final Notice of Sale of an oil and gas lease located on the Outer Continental Shelf in the Gulf of Mexico. The court found BOEM’s actions to be in violation of regulations set forth by OCSLA since the agency made significant changes to the Final Notice of Sale, thereby not allowing the affected parties the opportunity to comment. The court also found BOEM’s actions to be arbitrary and capricious as the agency failed to reasonably explain both its swift change in position and the challenged terms, resulting in economic harm and a potential change in future industry operations. The court issued the requested preliminary injunction, requiring the Department of Interior to hold the sale no later than September 30th absent the additional terms. On November 14, 2023, the Fifth Circuit issued an order with a new timeframe for the lease sale. On December 20, 2023, BOEM held Lease Sale 261.

B. Administrative Developments

In September, the Biden Administration released its 5-year plan for offshore oil and gas leasing - the 2024–2029 National Outer Continental Shelf Oil and Gas Leasing Program. The Department of Interior announced that it was the smallest plan in history, as the plan only contains three lease sales in the Gulf of Mexico. The Biden Administration needed to include some lease sales, however, to comply with requirement in the Inflation Reduction Act to offer at least 60 million acres on the outer continental shelf for oil and gas leasing in the previous year. The lease sales will be held in 2025, 2027, and 2029 in areas of the Gulf of Mexico that already have oil and gas production and infrastructure.

This report was prepared by the Oceans and Coasts Committee and edited where necessary by Catherine Janasie. Contributors also include: Ashley Koehler, AnnaGrace Meeks, Jonathan Scoggins, Kaitlyn Shaw, Madison Vice, and Matthew Sheffield. Case summaries in this chapter from the NSGLC Ocean and Coastal Case Alert used with permission. Nothing in this review represents the views of the contributors’ employers or their clients.