SOURCE: Fisheries Survival Fund

Fisheries Survival Fund

February 16, 2017 15:31 ET

Legal Fight in New York Offshore Wind Farm Case Continues on Merits; Request for Preliminary Injunction Denied

WASHINGTON, DC--(Marketwired - February 16, 2017) - The U.S. District Court for the District of Columbia decided late Wednesday not to grant a preliminary injunction in the lawsuit brought by a host of fishing communities, associations and businesses -- led by scallop industry trade group the Fisheries Survival Fund -- against the impending leasing of the New York Wind Energy Area to Statoil Wind of Norway. The suit alleges the U.S. Bureau of Ocean Energy Management (BOEM) leasing process did not adequately consider the impact of wind power development in the waters off Long Island, New York on the region's fishermen.

The fishing industry asked that the court temporarily halt BOEM from proceeding with the final ratification of a lease on the area, which was preliminarily awarded to Statoil, Norway's state oil company, for $42.5 million.

"Getting a preliminary injunction granted is difficult, given the high standards that the court applies," said Mayor Kirk Larson of Barnegat Light, N.J., one of the plaintiffs in the case. "But our case will continue, and we are confident that we will succeed on the merits."

The ruling explained that a preliminary injunction is an extraordinary and drastic remedy, that the standard for proving irreparable harm is "particularly high" in the D.C. Circuit, and that plaintiffs must prove that their injuries are "certain, great, actual and imminent."

However, the court remarked that it "maintains its authority to ultimately enjoin the lease in this litigation if necessary," and noted that Statoil is aware that its proposals for the wind farm may be rejected and that it may never construct or operate such a facility.

"While the court didn't find that the issuance of this lease would cause immediate and irreparable harm to fishermen, it remains true that the ultimate construction and operation of a wind farm will have devastating effects on our industry, the environment, and marine resources," said Bonnie Brady, executive director of the Long Island Commercial Fishing Association in Montauk, N.Y., another plaintiff in the case. "We have made it clear to the government and Statoil that fishermen will not be ignored in this debate."

The ruling stated that the fishing industry offered numerous arguments for why the environmental analyses prepared by BOEM were defective, and in violation of the agency's statutory and regulatory requirements, including that it failed to analyze the actual construction and operation of a wind facility and further failed to consider other potential locations for the wind facility.

The court also noted that when the draft environmental assessment was published in the Federal Register for public comment in June 2016, many members of the fishing industry submitted comments about how a wind facility in the proposed lease location would harm their fishing interests and the marine habitat in that area.

BOEM had argued that the proper time to assess environmental impacts of construction is years from now, after a Construction and Operations Plan is approved, but the court cited precedent in the D.C. circuit that suggests the proper time for the agency to consider these environmental impacts may be "at the present stage."

The ruling also looked at the balance between the interests of each side. The government argued that the public interest supported its wind energy leasing program, and the financial interest in the lease, while the fishing industry argued that the public interest is best served by allowing the industry to continuing commercial fishing activity. The court found that the balance did not favor either side.

"The fishing industry and the public already have a vested interest in these areas," said Meghan Lapp, Fisheries Liaison for Seafreeze Ltd. in Point Judith, R.I., which is also a plaintiff in the case. "This will have a significant negative impact on the squid industry and the state of Rhode Island, which lands more calamari than all other East Coast states combined. BOEM cannot be allowed to ignore American small businesses and the American people."

Read the court's decision at Saving Seafood

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