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Court tosses out fisheries' lawsuit over NY offshore wind farm

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Court tosses out fisheries' lawsuit over NY offshore wind farm

A federal district court judge rejected the commercial fishing industry's second attempt to stop Equinor's 800-MW offshore wind farm off the coast of New York.

In a Sept. 30 decision, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia tossed out allegations by a consortium of fisheries, industry groups and coastal municipalities that the U.S. Bureau of Ocean Energy Management's, or BOEM's, decision to sell a $42 million lease for the Empire Offshore Wind Farm (Rockaway Peninsula) violated several federal policies, including the National Environmental Policy Act and the Outer Continental Shelf Lands Act, known respectively as NEPA and OCSLA.

The court noted that the federal government's leasing decision "is causally connected" to increased risk of harm to the fishing industry's interests in Equinor's wind energy zone, but that it was too soon in the project development process for the plaintiffs to bring up their complaints on NEPA.

"On its own, the lease at issue does no more than grant [Equinor] the exclusive right to submit a Site Assessment Plan and Construction and Operations Plan to BOEM for approval," the court said. In other words, it is not guaranteed that Equinor can build the wind farm until it gets the green light from regulators.

The court also tossed out the fisheries' OCSLA complaint because they did not comply with a provision requiring 60 days' notice of an intended filing on BOEM's upcoming lease sale.

The fisheries filed the lawsuit in September 2017, calling on the court to grant a motion for summary judgment and throw out the Norwegian oil company's lease to build offshore wind projects in New York federal waters. The plaintiffs claimed that if Equinor, then known as Statoil, built the offshore wind farm, it would hurt the sea scallop industry and other fisheries in the area.

The Fisheries Survival Fund, one of the plaintiffs in the case, said in an Oct. 1 statement that the ruling is a Catch-22 situation. The court's opinion was that their case is premature for the leasing stage, but the referenced case law finds a leasing challenge too late if it comes during the construction and operation plan phase.

"If the court's position is upheld, BOEM apparently would have the ability to lease any portion of the ocean unchallenged and would deny any harmed parties their right to challenge a proposed lease sale under the OCSLA," the organization said.

The U.S. fishing industry and the offshore wind sector have had a contentious relationship; the Fisheries Survival Fund and the other fishing groups tried to block the lease sale to Equinor in 2016 without success. In August 2018, several fish companies expressed dissatisfaction with developer Bay State Wind's changes to the layout of turbines for its 800-MW project offshore Massachusetts after the developer said it altered the project to include input from fishermen.