A group of fishing organisations, businesses and communities has moved forward with a lawsuit against the Bureau of Ocean Energy Management (BOEM) to halt leasing of an area off the coast of New York to Norway’s Statoil for a planned wind farm.

The suit filed with the US District Court for the District of Columbia seeks summary judgment (no trial) and requests that it invalidate the record $42.5m lease in federal waters, which BOEM awarded Statoil last December.

The group, led by Fisheries Survival Fund (FSF), an Atlantic scallop industry advocacy organization, asserts that BOEM’s process for awarding the lease failed to properly consider the project’s impact on area fish populations and habitats, shoreline communities, safety and navigation.

This violates the National Environmental Policy Act (NEPA), which requires an assessment of these impacts before issuing the lease, in conjunction with a full Environmental Impact Statement and an evaluation of alternative locations for any proposal, the suit alleges.

It also alleges that BOEM’s failure to consider those impacts prior to advancing the leasing process violates the Outer Continental Shelf Lands Act (OCSLA), which charges the agency with considering and providing for existing ocean users.

Lastly, the suit asserts that BOEM’s actions violate the Administrative Procedure Act, which prohibits agencies from acting in ways that are arbitrary, capricious, and contrary to law.

“The plaintiffs in this case believe sensible wind energy development and fishing can co-exist,” says David Frulla, who is representing FSF and the other plaintiffs in the case.

“But any offshore energy project must first meaningfully consider the impact on the habitats, marine species, and economic interests that may be harmed before selecting a wind farm site and issuing a lease to a private developer,” he adds.

Joining the suit are other fishing industry groups, the City of New Bedford, Massachusetts, the Borough of Barnegat Light, New Jersey and the Town of Narragansett, Rhode Island.

Following the plaintiffs’ filing last week, the federal government is due to file their own cross-motion for summary judgment, and responses to the plaintiffs’ brief, in the coming months.

As the leaseholder, Statoil has been granted the right to participate in the litigation as a defendant intervenor, Elin A. Isaksen, a spokeswoman for Statoil, tells Recharge.

The company previously filed information with the court regarding the stages of project development, types of activities the company will perform under the lease and other "relevant facts," she says.

"As we do with all our offshore wind projects, Statoil will continue to actively engage with stakeholders to foster respectful and informative dialogue around issues related to the project," Isaksen adds.

She declined comment on the lawsuit, referring inquiries to BOEM.

The view from New Bedford

The issue is especially complex for New Bedford, which is home to the Marine Commerce Terminal, in which the state of Massachusetts invested more than $100m to win future offshore wind work.

The trio of developers competing for offshore wind contracts in Massachusetts – Deepwater Wind, Dong Energy, and Vineyard Wind – have all signed letters of intent to use the New Bedford Marine Commerce Terminal as staging and deployment grounds for future projects. The terminal is located within the Port of New Bedford, which is part of the lawsuit brought against BOEM and Statoil.

The lawsuit does not mean that New Bedford and the Port have come out against offshore wind, insists Edward Anthes-Washburn, director of the Port of New Bedford.

The seafood industry is “critically important in terms of who we are”, and currently responsible for more than 90% of port-related jobs in New Bedford, Anthes-Washburn says. But that being said, “where we see things going, obviously, is the offshore wind industry”.

“We see offshore wind as a huge opportunity for the Port of New Bedford, and for small ports like New Bedford.”

Speaking this week at an offshore wind event in New York, Anthes-Washburn noted that the areas off Massachusetts and Rhode Island that BOEM eventually leased to Deepwater, Dong and Vineyard were partially cut back at the request of fishermen.

A similar compromise could be struck for the New York Bight, where Statoil’s zone is located, he suggests. “It’s a big area."

Not all types of fishermen will be affected by offshore wind in the same way, he says. Lobster fishermen, who use fixed gear, might actually benefit because lobsters are attracted to offshore structures.

But fishers using “mobile gear, like draggers – squid and scallop fishermen – might not be able to get in there [with offshore turbines in place], or might not have the insurance to get in there. So there’s a lot of questions.”

Statoil envisions a first stage of 400-600MW for start-up by the early 2020s. The Wind Energy Area is more than 320sq km (127sq miles) and located between 11.5-24 nautical miles (21.2-444.4km) south of Jones Beach on Long Island.

It has more than 1GW of wind power capacity and water depths targeted for development are between 20 and 40 metres.

New York State officials see Statoil’s project as the vanguard for an eventual 2.4GW of offshore wind development – all of it in the Atlantic Ocean. Earlier efforts to explore activity in the Great Lakes met with strong public opposition.

Story updated with comments from the Port of New Bedford and Statoil.

Wind

Fishermen ask court to annul New York offshore wind lease