Court rejects fishermen’s challenge to Equinor’s Empire Wind

Source: David Iaconangelo, E&E News reporter • Posted: Wednesday, October 3, 2018

A D.C. district court rejected an attempt by commercial fishing groups to block a wind project off the coast of New York on Sunday, siding with developer Equinor ASA and the Interior Department.

The Fisheries Survival Fund (FSF), which represents scallop fishermen who work off the Atlantic coast, claimed that the Interior Department’s Bureau of Ocean Energy Management (BOEM) had violated two federal laws when it awarded Equinor, formerly Statoil, the $42 million rights to assess potential for wind turbines in a 127-square-mile block in 2016.

The Norway-based company said last year that it had dubbed the planned wind farm “Empire Wind” and aimed to secure a power purchase agreement with utilities by the end of 2018.

The agency issued the lease without considering the interests of fishermen within that area, said the FSF, joined by several local seafood and fishing associations and three towns in Rhode Island, Massachusetts and New Jersey.

Exploration and development for a future wind farm at the site, they argued, would “directly damage the natural resources in that area,” keeping fishing vessels from operating there and posing navigational safety issues.

They also said that BOEM should have performed a full environmental impact statement before issuing the lease, rather than waiting until later on in the application process.

The U.S. District Court for the District of Columbia found that those groups had standing to bring their claims under the National Environmental Policy Act and the Outer Continental Shelf Lands Act. But it ruled that the NEPA claim could not be adjudicated, because BOEM still had the authority to keep Equinor from actually building turbines in the offshore block.

“On its own, the lease at issue does no more than grant Statoil the exclusive right to submit plans for site assessment and construction to BOEM to approval,” said the court.

And it ruled that the groups had brought their OCSLA claim too soon, before the end of the mandatory 60-day waiting period that began when they gave notice of the alleged violation. That resulted in the claims being barred.

The scallop fishermen and other groups had unsuccessfully tried to halt the wind farm’s construction with a preliminary injunction back in 2016, prior to the awarding of the lease (Greenwire, Dec. 8, 2016).