Complaint to reverse and set aside BOEM action on Ocean Wind 1 offshore wind

Second Cause of Action: Violation of the National Environmental Policy Act and the Administrative Procedure Act 

61. Plaintiffs reallege and incorporate by reference all of their previous allegations and further allege as follows. 

62. The National Environmental Policy Act (“NEPA”) requires “the federal government to identify and assess in advance the likely environmental impact of its proposed actions, including its authorization or permitting of private actions” like the Ocean Wind 1 Project.74 

63. NEPA serves as our “basic national charter for the protection of the environment.”75 NEPA achieves its purpose by “action forcing procedures . . . requir[ing] that agencies take a hard look at environmental consequences” of their proposed actions.76 NEPA’s “hard look” requires federal agencies to analyze and consider “any adverse environmental effects which cannot be avoided.”77 To comply with NEPA, Agencies must consider “[b]oth short- and long-term effects . . . [b]oth beneficial and adverse effects . . . [e]ffects on public health and safety . . . [and e]ffects that would violate Federal . . . law protecting the environment.”

64. NEPA requires agencies to “identify and develop methods and procedures . . . which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations.”79 Specifically, NEPA requires federal agencies to prepare a “detailed statement [for all major agency actions] significantly affecting the quality of the human environment,”80 known as an Environmental Impact Statement. 

65. The statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement serves NEPA’s “action-forcing” purpose in two important respects. NEPA 

ensures that the agency, in reaching its decision, will have available and will carefully consider detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision. 

66. The May 26, 2023 Final Environmental Impact Statement prepared by BOEM and NMFS was incomplete, inaccurate, and failed to comply with multiple requirements of NEPA. And because those agencies failed to comply with NEPA by failing to take a hard look at the environmental impacts of the Ocean Wind 1 Project, their July 3, 2023 final agency actions approving the Project’s Construction and Operations Plan and Letter of Authorization were arbitrary, capricious, and not in accordance with law—and should therefore be set aside. 

Defendants Have Violated NEPA by Impermissibly Segmenting the Multiple Areas of the Offshore Wind Program and Ignoring the Cumulative Environmental Impacts of the Thousands of Turbines on Millions of Acres of Ocean That BOEM Expects to Approve in the Near Future 

67. NEPA requires that an Environmental Impact Statement include within its scope “[c]umulative actions [that] when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement”83 and “[s]imilar actions [that] when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together.”84 This cumulative impact requirement ensures that agencies consider the collective effects of individually minor but related actions over time when analyzing the environmental impacts of a proposed government action.85

68. NEPA is 

in large measure, an attempt by Congress to instill in the environmental decision-making process a more comprehensive approach so that long-term and cumulative effects of small and unrelated decisions could be recognized, evaluated, and either avoided, mitigated, or accepted as the price to be paid for the major federal action under consideration.

69. The Council on Environmental Quality defines cumulative effects as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.”

70. The United States has set a target of producing 30 Gigawatts (30,000 megawatts) of Offshore Wind by 2030: 

To position the domestic offshore wind industry to meet the 2030 target, DOI’s Bureau of Ocean Energy Management . . . plans to advance new lease sales and complete review of at least 16 Construction and Operations Plans (COPs) by 2025, representing more than 19 GW of new clean energy for our nation. . . . Achieving this target also will unlock a pathway to 110 GW by 2050. . . .”

Defendants acknowledged the interrelated and cumulative effects of their offshore wind program in 2007 when they produced a Programmatic Environmental Impact Statement for Alternative Energy Development and Production and Alternate Use of Facilities on the Outer Continental Shelf.89 Defendants intended this Programmatic Environmental Impact Statement to provide a “baseline analysis that helps to satisfy the requirements of NEPA for offshore renewable energy leasing,” because “many wind energy projects will have similar environmental impacts.”91 This Programmatic Environmental Impact Statement does not satisfy NEPA’s cumulative impacts requirement today because Defendants have significantly altered and expanded their offshore wind program, rendering the Programmatic Environmental Impact Statement’s analysis of cumulative environmental impacts inaccurate and outdated and requiring a supplemental or new Environmental Impact Statement analyzing the current program as it now exists. 

71. Ocean Wind 1 is one of four wind projects slated to be constructed off the coast of southern New Jersey. Three other projects are in the works. Atlantic Shores North’s Construction and Operations Plan is still being reviewed by BOEM but is anticipated to consist of 160 wind turbines.92 Atlantic Shores South, which will place its wind turbines one nautical mile away from Ocean Wind 1’s turbines, is currently awaiting approval, and the public comment period for the Draft Environmental Impact Statement closed in July 2023.93 Atlantic Shores South is anticipated to consist of 211 wind turbines.94 And Ocean Wind 2, which will also be adjacent to Ocean Wind 1, is in the early stages of planning and is anticipated to consist of 113 wind turbines.95 Once constructed, these four projects will run from off the coast of Atlantic City to the tip of the County of Cape May and will look as if they are one continuous project of more than 550 wind turbines. 

72. But Defendants’ Final Environmental Impact Statement fails to take a hard look at the cumulative impacts of Ocean Wind 1 combined with the three adjacent offshore wind projects that have been leased and are expected to be constructed nearby and the dozen or more additional offshore wind energy facilities that are expected to be built along the Atlantic coastline. BOEM thus fails to analyze the combined impacts of the thousands of proposed offshore wind turbines, covering millions of acres of pristine seabed and open ocean, on the human and natural environment.

73. By segmenting their offshore wind program and analyzing the environmental impacts of the Ocean Wind 1 Project in isolation, Defendants unlawfully fail to analyze and consider the cumulative environmental impacts of the other multiple offshore wind projects that BOEM has approved or is considering for approval. Defendants’ failure to analyze the cumulative environmental impacts of its offshore wind program, as NEPA requires, is arbitrary, capricious, and not in accordance with law—and should be invalidated and set aside.

Defendants Impermissibly Narrowed the Project Description, Unlawfully Limiting Their Analysis of Alternatives to the Proposed Ocean Wind 1 Project