Ocean City expects BOEM lawsuit to cost up to $400K

The Town of Ocean City and several local agencies and businesses are suing a federal agency over its approval process for the US Wind project off Maryland’s coast.

On Oct. 25, the Town of Ocean City announced it has retained Marzulla Law, LLC to file a lawsuit against the Bureau of Ocean Energy Management (BOEM). The lawsuit, which lists several co-plaintiffs, challenges the agency’s process for approving the US Wind project, which will involve the construction of 114, 938-foot-tall wind turbines roughly 10 miles off the coast of Ocean City.

“We have a responsibility to protect our ecosystem, our economy, view shed and our future,” Mayor Rick Meehan said in a news release. “For the past seven and half years we have been trying to work with the State of Maryland and the federal government to address our concerns with this project. All of our concerns were either ignored or considered insignificant. It is unfortunate that it has come to this, but the Town was left with no choice but to file suit against BOEM and challenge their favorable record of decision on the US Wind project."

In September, the U.S. Department of the Interior’s Bureau of Ocean Energy Management released a favorable record of decision for the commercial-scale Maryland offshore wind project. The agency’s approval concluded a two-year National Environmental Policy Act (NEPA) process and set US Wind on a path to securing all of its remaining federal permits by the end of 2024.

Since that time, however, city officials have been meeting with consultants and attorneys to discuss a potential lawsuit, which came to fruition last Friday. The complaint, filed in U.S. District Court for the District of Maryland, alleges the U.S. Department of the Interior, BOEM and the National Marine Fisheries Service failed to conduct a transparent approval process and meet statutory and regulatory requirements set forth by the Administrative Procedure Act, the National Environmental Policy Act, the Endangered Species Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the Coastal Zone Management Act, and the National Historic Preservation Act.

“When the Government announced its goal of deploying 30 gigawatts of offshore wind energy projects by 2030, it set into motion a coordinated effort to approve major federal undertakings on the Outer Continental Shelf as fast as possible, sacrificing a transparent approval process, the purpose of notice and comment rulemaking, and shortcutting the statutory and regulatory requirements that were enacted to protect our nation’s environmental and natural resources, its industries, and its people,” the complaint reads.

When reached this week, both BOEM and US Wind declined to comment on the litigation.

Several co-plaintiffs join Ocean City in lawsuit

Marzulla Law, LLC, a firm known for its expertise in environmental and property rights litigation, will lead Ocean City’s case against the federal government. City Manager Terry McGean said Ocean City has spent roughly $40,000 in its lawsuit, and that none of the 20-plus co-plaintiffs have contributed money toward the effort.

“We expect the total cost for the lawsuit to be between $300,000-$400,000,” he said this week.

Named co-plaintiffs in the lawsuit include the Worcester County Commissioners, the Mayor and Town Council of Fenwick Island, the Ocean City Hotel-Motel-Restaurant Association (HMRA), the Greater Ocean City Chamber of Commerce, the Coastal Association of Realtors, the White Marlin Open, and several other local organizations and businesses, including companies representing Thrasher’s French Fries and Jolly Roger. Those joining in the lawsuit raise concerns about the potential negative impacts the project could have on the viewshed, local environment, tourism industry and the fishing community.

“Because adding hundreds of towering turbines, each affixed with red lights visible day and night, would drive visitors, residents, and second home buyers elsewhere, notwithstanding the unknown environmental impacts to marine life, the Worcester County Commissioners vehemently oppose the project and have joined the Town of Ocean City and other members of the community in this lawsuit,” Commissioner Chip Bertino said this week. “Such marine, environmental, and economic devastation would in perpetuity diminish property values and reduce tax revenues in Worcester County.”

When reached for comment this week, Fenwick Island Mayor Natalie Magdeburger recognized Meehan and the Town of Ocean City for leading the legal effort. She argued the US Wind project posed concerns not only for the environment and the economy, but also for public safety.

“We see what our future is going to entail,” she said. “Putting these wind turbines up is a disaster on so many levels.”

Co-plaintiffs in and around Ocean City echoed those concerns.

“While we recognize climate change and are not anti-renewable energy, we do not support the current offshore turbine proposal; the 114 turbines 10.7 miles off our beach pose an immediate, concrete threat to a vibrant tourism-based economy,” Susan Jones, executive director for the Ocean City HMRA, said. “We have grave concern for blades ending up in our oceans and destruction of ecosystems.”

Amy Thompson, executive director for the Greater Ocean City Chamber of Commerce, said her organization supported the city and other plaintiffs in the lawsuit against the federal government. She opined the offshore wind project would impact visitation, property values, and the recreational and commercial fishing industries.

“There is much enthusiasm across the state for the jobs offshore wind projects will bring,” she added. “Certainly, there will be startup needs for labor, but maintenance and ongoing needs will not outweigh the industries destroyed by these wind turbines placed in our waters.”

In a statement issued this week, the White Marlin Open shared its opposition to the US Wind project. The organization states it joined the lawsuit “in order to both protect and continue” the town’s legacy as the “White Marlin Capital of the World.”

“This project would be catastrophic to the recreational fishing industry and pose an obvious threat to the marine ecosystem that the sport fishing industry relies on,” the statement reads. “The proposed windmills will also create a significant safety hazard for all vessels. Known affectionately as ‘The Best Week of the Year,’ the White Marlin Open generates a significant economic impact for the town of Ocean City and the state of Maryland. We know that this is a poorly conceived and executed project that will not be good for our business or the citizens of the town and we intend to fight it every step of the way.”

Several local organizations – including the Caine Woods Community Association, the Little Salisbury Civic Association, the Delmarva Community Managers Association and the Ocean City Development Association (OCDC) – are also named as co-plaintiffs. At Caine Woods, 89,9% of the association’s voting membership opted to join the city in its lawsuit, according to Board President Mike Quade. And within the OCDC, participation in the city’s lawsuit was supported by the organization’s board of directors.

“The Board of Directors and Staff at the OCDC feel very strongly that the planned offshore wind turbines will be detrimental to the local economy and environment,” Executive Director Zach Bankert said. “You simply need to look at what happened in Nantucket this past summer, where their beaches were closed after being littered with fiberglass shards after their offshore wind turbine blades failed. There are multiple concerns including the environmental impact of building and operating the turbines, the takeover of the harbor, the negative effects on the local real estate market, and the harm caused to our fishing and tourism industries. It was an easy decision for the OCDC Board of Directors to join the City’s lawsuit as a co-plaintiff.”

US Wind, government tout offshore wind benefits

From the outset, officials with US Wind, as well as state and federal agencies, have highlighted the benefits offshore wind could bring to Maryland. The phased project – to include up to 114 wind turbines, four offshore substation platforms, four offshore export cable corridors and one meteorological tower – is expected to generate more than two gigawatts of renewable energy for the Delmarva Peninsula and support nearly 2,700 jobs over the next seven years.

As part of its approval process, BOEM evaluated the impacts of US Wind’s project, as well as a range of alternatives, in a document known as an Environmental Impact Statement.

While acknowledging the project “would result in major impacts” to the viewshed, the federal agency opined new reefs and wind turbine structures could result in sightseeing opportunities.

The document also reports the US Wind project could result in minor to moderate impacts on water quality, wetlands, and coastal habitat, as well as disturbances to marine mammals. In terms of commercial and recreational fishing, BOEM said project construction, operation and decommissioning could affect port and fishing access.

When BOEM issued a favorable record of decision in September, it put US Wind’s project on the path of becoming one of the nation’s first ten commercial-scale offshore wind operations. With a lawsuit now challenging that approval process, it remains to be seen what effect it will have on the project.

Ocean City lawsuit follows similar cases

It should be noted that similar lawsuits have been filed in New Jersey and Massachusetts, where nearby offshore wind projects have been challenged by local governments and interest groups.

In New Jersey, for example, Cape May County and other local groups hired Marzulla Law to sue the federal government last year over its approval process for Ørsted’s Ocean Wind projects. Since that time, however, the Danish renewable energy company has announced it would cease development of Ocean Wind 1 and Ocean Wind 2, citing high inflation, rising interest rates and supply chain issues, among other things.

In August, months after the company’s announcement, the New Jersey Board of Public Utilities terminated its orders approving the company’s offshore wind projects. However, litigation continues in U.S. District Court for the District of New Jersey, with Ørsted seeking to stay the case rather than dismiss it.

“The Company, however, insists that the case should be stayed – not dismissed – posing the speculative notion that ‘Ocean Wind could potentially sell the Project, including the Federal permits and approvals being challenged in this lawsuit,’” an Oct. 15 supporting exhibit from the plaintiff reads.

Marzulla Law also represents a group of Nantucket, Massachusetts residents challenging the adequacy of the federal government’s environmental review of the Vineyard Wind Project, which came under scrutiny earlier this summer when debris from a collapsed turbine blade washed ashore on Nantucket beaches. In September, the law firm petitioned the U.S. Supreme Court to review a decision of the First Circuit, which upheld a district court decision to dismiss the case. At the center of the petition, the law firm reports, is the North Atlantic right whale. The plaintiffs argue that BOEM and the National Marine Fisheries Service ignored the Endangered Species Act in their approval of Vineyard Wind.