Icebreaker Offshore Wind: Complaint for declaratory and injunctive relief

Excerpt of the Complaint

53. Despite concerns expressed by FWS and others stressing the need for a rigorous EIS to fully examine the Project’s impacts, DOE published its Draft EA for the Icebreaker Project in August 2017. It said that the purpose and need for the Project “is to verify innovative designs and technology developments and validate full performance and cost under real operating and market conditions.” Draft EA at 1-3. The Draft EA further noted that the Project would “fulfill DOE’s goals of installing innovative offshore wind systems in U.S. waters in the most rapid and responsible manner possible and expedite the development and deployment of innovative offshore wind energy systems with a credible potential for lowering the [levelized cost of energy].” Id.

54. Particularly relevant here, the Draft EA concluded that “[t]he proposed wind turbines are not likely to generate population-level effects for any species,” which, according to DOE, means that “potential impacts to birds and bats would be considered minor.” Draft EA at 3-50. However, as noted by FWS in its Scoping Comments, DOE’s conclusion relied on flawed data projections and faulty assumptions regarding bat and avian density within the Project area. Indeed, DOE noted that its impacts conclusion rested “primarily on the low use of offshore environments within the central Lake Erie basin by birds and bats,” id., as reported by LEEDCo’s avian and bat density studies, the methodologies of which FWS strongly criticized and dismissed as fatally flawed.

55. Notwithstanding EPA’s recommendation that DOE examine a broader range of alternatives, the Draft EA analyzed only two: “the potential environmental impacts of the Proposed Action and the No-Action Alternative.” Draft EA at 1-1. Although the Draft EA offered a cursory explanation for LEEDCo’s dismissal of alternative Project sites, DOE did not itself provide a meaningful comparison of the environmental impacts of those alternatives, nor did DOE meaningfully consider whether alternate locations would fulfill the federal purpose and need that underlie the Project. See Draft EA at 2-22. Indeed, the portion of the Draft EA discussing the proposed turbine layout specifically noted that “[e]nvironmental and cost factors were not analyzed.” Draft EA at 2-27. Moreover, DOE ultimately failed to include even this cursory discussion of alternative locations in the Final EA and, for these reasons, cannot satisfy DOE’s obligation under NEPA to examine all reasonable alternatives.

56. With respect to cumulative impacts, the Draft EA summarily concluded that because “no other offshore projects were identified and offshore activities from the Project would have negligible impacts to birds and bats, cumulative impacts to birds and bats would be expected to be negligible.” Draft EA at 4-2. DOE reached this conclusion despite the express categorization of the Icebreaker Project as a “demonstration project” that is meant to catalyze and direct further expansion of commercial wind energy development in the Great Lakes region, including the potential construction of over 1,000 additional wind turbines on Lake Erie alone.

57. In addition to DOE’s cursory impacts and alternatives analyses, the Draft EA also purported to set forth the Corps’ examination under the CWA of the various public interest review factors listed in 33 C.F.R. § 320.4(a)(1) and implicated by the Project. As to nearly every factor listed, however, the Draft EA simply referred the reader to the corresponding analysis conducted by DOE without any additional independent analysis by the Corps—a cooperating agency involved in the preparation of the Draft and Final EAs. 

58. In response to the Draft EA, DOE received comments voicing overwhelming opposition to the Icebreaker Project and/or DOE’s analysis of the Project’s impacts, including from Plaintiffs, other conservation organizations, FWS, EPA, ODNR, and other state agencies.

59. FWS’s comments, submitted on October 4, 2017, were deeply critical of the Draft EA’s evaluation of the Project’s environmental impacts. FWS repeated many of the objections it raised in its Scoping Comments. In addition to concerns with DOE’s overall NEPA process, FWS addressed three principal deficiencies in the Draft that, when taken either individually or collectively, downplayed and artificially minimized the Project’s impacts: (1) the Draft EA’s mischaracterization of “bird and bat use of the project area”; (2) the suppressed evaluation of “collision mortality of birds and bats from the operating project”; and (3) the lack of any monitoring mechanisms necessary to “inform items 1 and 2.” FWS Draft EA Comments at 2.

60. With respect to the Draft EA’s characterization of bird and bat use of the Project area, FWS noted that “the conclusions reached in the Draft EA regarding potential impacts to birds and bats are based on available data collected primarily outside of the project area,” meaning that the conclusions reached in the Draft EA “may or may not be accurate.” Id. at 2–3 (emphasis added). Likewise, FWS again criticized the Draft EA’s conclusion that migratory birds “tend to concentrate along coastlines and avoid flying over large water bodies, such as Lake Erie, if possible.” Id. at 3 (quoting Draft EA at 3-32). According to FWS, DOE’s conclusion on this point was “misleading,” as the studies relied upon by DOE in fact show that “large numbers of migrants do fly over water bodies,” including Lake Erie and the Project area. Id. (emphasis added).

61. FWS also criticized the Draft EA’s extensive reliance on NEXRAD radar data to estimate the quantity of birds and bats using the Project area. As noted by FWS, NEXRAD “primarily provides data on migrating birds and bats located above the rotor-swept zone”; however, “[b]ird and bat densities at higher altitudes do not always correlate with densities at lower altitudes, and this may especially be the case in a different environment such as offshore.” Id. at 4 (emphasis added). Thus, FWS observed that “it is impossible to use this data to determine if birds and bats are flying within the rotor-swept zone or above it.” Id. at 4.

62. In fact, FWS noted that its recent radar studies directly refute DOE’s NEXRAD data and DOE’s conclusion that bird and bat use of the Project area is low. FWS’s site-specific data revealed that “large numbers of bats and birds migrat[e] across the lake during fall, often within or near the rotorswept zone.” Id. FWS specifically included those data in its comments to DOE so that DOE could engage in an informed NEPA process, which DOE failed to do.

63. FWS also criticized DOE’s reliance on NEXRAD data to estimate songbird mortality. Disputing DOE’s conclusion that impacts to songbirds would be minimal due to the fact that “less than half” of these birds migrate over Lake Erie, FWS stressed that “less than half” of songbirds is still a significant number of individuals as “there are still likely to be millions of individual birds crossing Lake Erie during spring and fall migration each year.” Id. at 6 (emphasis added). FWS pointed out that the Draft EA’s conclusion—that songbird mortality would be “low”—was based on the erroneous assumption that migration behaviors and conditions are the same over water as they are over land. Id. According to FWS, the staggering quantity of songbirds crossing Lake Erie—potentially within the rotor-swept zone of the Project—combined with the fact that these birds “comprise the majority of mortality at wind power projects,” exemplifies the need for careful study of the Project’s impacts on this particularly vulnerable category of birds. Id. However, the present lack of reliable, site-specific data on songbird migration precludes any estimate on the number of songbirds “that might be at risk of collision with the turbines.” Id. For these reasons, FWS renewed its calls for rigorous, site-specific studies, noting that “implementation of the study within the project area has not occurred to date.” Id.