How BOEM quietly gutted a key ocean protection to push offshore wind

In 2005, Congress amended the Outer Continental Shelf Lands Act (OCSLA) to regulate renewable energy projects like offshore wind. As part of those changes, lawmakers added strong safeguards to protect existing ocean uses—such as fishing, navigation, and recreation—from harm.

One of the clearest protections appears in Section 8(p)(4)(I) of OCSLA, which states that the Secretary “shall ensure that any activity under this subsection is carried out in a manner that provides for … prevention of interference with reasonable uses (as determined by the Secretary) of the exclusive economic zone, the high seas, and the territorial seas.”

Congress placed the parenthetical “(as determined by the Secretary)” immediately after “reasonable uses” to clarify that the Secretary defines which uses are protected. But the statute draws a clear line: the Secretary may not determine when interference is permissible. The law requires prevention of interference, not its evaluation or tolerance.[1]

A Legal Opinion That Quietly Rewrote the Law

In 2021, the Department of the Interior’s top lawyer issued Solicitor’s Opinion M-37067, which subtly but significantly altered the law’s meaning. The opinion moved the phrase “(as determined by the Secretary)” to the end of the provision.

That small shift had major consequences. It gave BOEM—the Bureau of Ocean Energy Management—not just the power to define reasonable uses, but also the discretion to decide how much interference is acceptable. This effectively converted a legal safeguard into a policy judgment, enabling BOEM to approve wind projects that harm ocean users so long as it deemed the harm tolerable.

BOEM relied on this opinion to approve every major offshore wind project along the East Coast—all without a formal rulemaking process. The legal theory had never been subject to public scrutiny or codified in regulation.

Although M-37067 was posted online and cited in decisions, that did not make it law. Agencies cannot rewrite statutes by memo. Yet BOEM treated the opinion as binding—rewriting a Congressional mandate through agency fiat, with no transparency or public input.

A Rulemaking That Hid the Real Change

In January 2023, BOEM launched a formal rulemaking process billed as a “streamlining” initiative. The proposed rule made no mention of Section 8(p)(4)(I), nor of any plan to revise its language.

But in May 2024—after the public comment period had effectively ended—BOEM inserted the same reworded interpretation from M-37067 into the final rule, moving the parenthetical to the end of the sentence.

This was a deliberate and undisclosed legal change. It had never been included in earlier drafts. It was never presented for public comment. It was buried in the final rule without warning, explanation, or opportunity for the public to object.

The rule was finalized on July 15, 2024, three years after M-37067 was issued and just two months after the proposal was published—too late for anyone to respond.

BOEM had quietly rewritten a legal protection Congress put in place.

The Public’s Right to Be Heard Was Violated

This matters! Under the Administrative Procedure Act, federal agencies must give the public fair notice of regulatory changes and a meaningful opportunity to comment. BOEM bypassed this process.

By inserting its reinterpretation of § 8(p)(4)(I) only in the final rule, BOEM evaded public scrutiny and altered the meaning of a key environmental safeguard.

Congress never gave BOEM the power to decide whether interference with ocean uses is acceptable. The law requires BOEM to prevent it. What BOEM did is not a technical edit — it’s a structural rewrite that nullifies a core protection.

A Pattern of Overreach

This isn’t the first time BOEM has pushed legal boundaries to promote offshore wind. As Windaction.org previously explained, the agency also approved compensatory payments to fishermen harmed by wind projects — even though OCSLA requires harm to be prevented, not approved and paid for later.

That was one unauthorized workaround. The change to § 8(p)(4)(I) is another — and may be the most serious.

The Damage Remains — and Must Be Undone

Although the Interior Department rescinded M-37067 on May 1, 2025, it has taken no public steps to reverse the rewritten regulation or reevaluate the offshore wind projects approved under the now-retracted opinion. The altered version of § 8(p)(4)(I) still stands. So do the permits that relied on it.

The Department must act. It should:

• Restore the original statutory language;
• Revisit all affected project approvals; and
• Rescind permits that were based on M-37067.

Ocean users — and the rule of law — deserve no less.

[1] Congress’s placement of the phrase in the sentence and its use of parentheses were deliberate. The lawmakers signaled that this qualification applied only to the term “reasonable uses” — not to the entire clause. If Congress had intended to give the Secretary discretion over what counts as interference, it would have placed the phrase elsewhere or omitted the parentheses entirely.