Judge remands Atlantic Shores South to U.S. Energy Bureau

A federal judge granted the government’s request Aug. 10 to return its approval of the Atlantic Shores South project back to the Bureau of Ocean Energy Management, requiring the agency to restart key review steps after it said it had identified concerns that warrant another look.

“Remand is appropriate here in the interest of judicial economy and in the light of the lack of prejudice to Atlantic Shores. BOEM has stated that it intends to ‘reconsider, re-review,’ at least some of the ‘original agency decision(s) that are the subject of the legal challenge,’” U.S. District Judge Jia M. Cobb wrote in her Aug. 10 ruling.

Given the remand, Cobb also stayed ongoing litigation.

Sandi Briner, vice president of marketing and communications for EDF Power Solutions, said Tuesday morning, Aug. 11, “Atlantic Shores has no comment.”

In her ruling, Cobb noted BOEM officials believe the agency’s prior explanation of how the Atlantic Shores construction and operations plan complied with the Outer Continental Shelf Land Act “may have failed to account for all the impacts” that the Atlantic Shores project may cause.

BOEM also said other documents, especially the environmental impact statement, may have downplayed or obscured impacts, which may then have been improperly considered when BOEM reached its conclusions in the OCSLA memo, according to Cobb’s ruling.

“Save Long Beach Island welcomes the BOEM request and the court’s decision to remand the Atlantic Shores approvals, and it is satisfying to finally see agency and judicial validation of the many significant concerns we have been highlighting,” Bob Stern, the nonprofit’s president, said Aug. 11. “We are grateful to all the other plaintiffs who have participated in this effort with us.”

Save LBI and the other plaintiffs said that their legal claims under the Marine Mammal Protection Act, Endangered Species Act, National Environmental Policy Act, Outer Continental Shelf Lands Act and Coastal Zone Management Act directly affect BOEM’s prior decision and its approval of the construction and operations plan. They argued that these laws shape the analyses BOEM must use to decide whether the approved activities adequately address the factors OCSLA requires the bureau to consider.

Cobb rejected Atlantic Shores’ main arguments against remanding the case, including its position that the preliminary injunction in the RENEW Northeast case prevented BOEM from reevaluating the project; that Congress limited BOEM’s authority to reconsider its approval of the construction and operations plan; and the company’s assertion the remand would severely prejudice the project by threatening its investments and risking modifications or revocations that could cascade into loss of other approvals and potential termination of the project.

The Atlantic Shores Project 1 totaled more than 400 square miles across three lease areas, including two zones approximately 10 to 20 miles off the coast between Atlantic City and Barnegat Light, and was anticipated to bring in nearly $2 billion in economic benefits. About $848 million of that expected windfall was guaranteed as local investment.

That was before the offshore wind developer pushed the pause button on its planned wind farms off the coast of Long Beach Island after months of taking hits due to President Donald Trump’s executive order last year. Roughly two weeks after Trump’s order, the N.J. Board of Public Utilities announced its decision not to move forward with awarding a fourth offshore solicitation. There were three initial bidders for the project, but after two withdrew, only Atlantic Shores was left standing.

Then, London-based Shell PLC announced it was withdrawing its partnership in projects to be built off the coast of Long Beach Island, writing off $1 billion in losses. And in March, a federal environmental appeals court judge dealt New Jersey’s offshore wind program another blow after she remanded for further consideration the Clean Air Act permit approval for what was expected to be the state’s first wind farm.

Still, Cobb’s remand came without vacatur, meaning the approved construction and operations plan stays in effect while BOEM reconsiders it.

“This court decision establishes important precedent in this case and provides persuasive authority in a number of respects,” said Thomas Stavola Jr., counsel for the plaintiffs. “It reaffirms BOEM’s inherent authority to reconsider approvals, confirms that the agencies can still obtain remand based upon reasons other than the currently enjoined Zerzan Opinion, as we’ve argued, and holds that a developer’s complaints about undue harm do not preclude remand.”

Cobb will also supervise the pace of the process. The parties must submit a joint status report by Oct. 9, including the federal government’s updated explanation of why a 120-day (or similar) deadline for completing BOEM’s reconsideration would not be appropriate. After that, the court ordered status reports every 60 days.