Save LBI Complaint file against BOEM

Complaint for Declaratory & Injunctive Relief under the National Environmental Policy Act, Endangered Species Act, & Administrative Procedure Act

This is an action to reverse and set aside the United States Bureau of Ocean Energy Management’s (BOEM’s) decision, which determined the final Wind Energy Areas in the New York Bight, because it is arbitrary, capricious, and otherwise not in accordance with the law.1 Specifically, when selecting Wind Energy Areas within the New York Bight as part of the federal government’s large-scale offshore wind energy program for the Atlantic coast, Defendants failed to comply with the National Environmental Policy Act (NEPA)2 and the Endangered Species Act (ESA).3 

Defendants did not prepare a regional programmatic environmental impact statement that would (1) comprehensively address the cumulative impacts of the five Wind Energy Areas Defendants selected for the New York Bight and other connected Wind Energy Areas, and (2) consider alternative levels of wind energy development in the selected Wind Energy Areas and Wind Energy Area locations different from those that Defendants have proposed. Instead, Defendants elected to forego any such analysis, and has indicated that it will defer its NEPA review of wind energy development in the New York Bight until after wind leases are issued and the leaseholders submit specific wind energy projects. As a result, BOEM has not prepared, and will not prepare, any NEPA document that will adequately address the cumulative impacts of wind energy development within the five New York Bight Wind Energy Areas and other connected Wind Energy Areas, as required by NEPA.

Further, Defendants’ decision to not prepare a programmatic environmental impact statement effectively forecloses any opportunity for the public to comment upon, critique, and offer alternatives to the Wind Energy Areas selected by Defendants. In effect, Defendants have committed themselves to a particular course of action and the use of a particular public ocean resource without first conducting a full and adequate alternatives analysis at the program level. This is a violation of NEPA.

In addition, the New York Bight Wind Energy Areas, as well as related Wind Energy Areas located immediately south of the New York Bight, lie within habitat used by various marine animals that have been listed as “threatened” or “endangered” under the ESA.4 Among these is the critically-imperiled North Atlantic right whale, whose total population has declined sharply in the last decade and now stands at approximately 300 individuals. BOEM’s selection of the New York Bight Wind Energy Areas, and the related Wind Energy Areas to the south, will directly facilitate construction and operation of offshore wind arrays within the habitat areas and migration corridors for North Atlantic right whale and other listed species, potentially affecting and resulting in take of these species. Pursuant to Section 7 of the ESA, any federal agency whose actions or decisions may affect a federally listed species must consult with the federal wildlife agency—the U.S. Fish and Wildlife Service—that has jurisdiction over the species in question.5 In this case, the affected species are marine animals and fall within the jurisdiction of the National Marine Fisheries Service. BOEM, therefore, was required under Section 7 to consult with the National Marine Fisheries Service prior to selecting the Wind Energy Areas challenged here to determine if installation of wind arrays in these locations would affect listed species, including the North Atlantic right whale. BOEM, however, failed to consult with the National Marine Fisheries Service on this issue. Consequently, no biological assessment or biological opinion has been prepared to analyze and disclose the potential effects of BOEM’s actions on listed species. In failing to consult with the National Marine Fisheries Service, BOEM violated the ESA.