FISHERIES SURVIVAL FUND et al v. JEWELL et al

Filing 26

MEMORANDUM AND OPINION re 3 Plaintiffs' motion for preliminary injunction. Signed by Judge Tanya S. Chutkan on 2/15/2017. (lctsc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FISHERIES SURVIVAL FUND, et al.,
Plaintiffs,
v.
SALLY JEWELL, et al.,
Defendants.

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Case No. 16-cv-2409 (TSC)

MEMORANDUM OPINION
This case involves the Bureau of Ocean Energy Management’s (“BOEM”) plan to lease
to Statoil Wind US, LLC a large nautical area off the coast of New York for the development of
a wind energy facility. Plaintiffs brought suit challenging BOEM’s alleged failure to properly
comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. and the
Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331–56, prior to the issuance of
the lease to Statoil. Before the court is Plaintiffs’ motion for a preliminary injunction to
temporarily halt BOEM from proceeding with the final sale of Lease OCS-A 0512. (ECF No. 3).
The court granted Statoil’s motion to intervene (ECF No. 13), and the court heard oral argument
on Plaintiffs’ preliminary injunction motion on February 8, 2017.
Upon consideration of the motion and the arguments of counsel at the hearing, and for the
reasons stated herein, Plaintiffs’ motion for a preliminary injunction is DENIED.
I.

BACKGROUND
A. The Parties
Plaintiffs in this case are nine commercial fishing organizations and businesses—the

Fisheries Survival Fund, The Town Dock, SeaFreeze Shoreside, Sea Fresh USA, Rhode Island
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Fishermen’s Alliance, Garden State Seafood Association, Long Island Commercial Fishing
Association, the Fisherman’s Dock Co-Operative of Point Pleasant, and the Narragansett
Chamber of Commerce—as well as three municipalities—the Borough of Barnegat Light, New
Jersey, the Town of Narragansett, Rhode Island, and the City of New Bedford, Massachusetts.
The nine commercial and organizational plaintiffs are all involved in the business of fishing for
scallops and squid in coastal areas located in the same site as the planned wind farm at issue.
(Compl. ¶¶ 4, 6–11, 13, 15). The municipal plaintiffs assert economic and natural resource
interests in the planned site. (Id. ¶ 12, 14, 15).
Defendant BOEM of the U.S. Department of the Interior administers the OCSLA and
oversees the wind facility leasing process at issue in this case. 30 C.F.R. § 585.100. DefendantIntervenor Statoil is the energy company that provisionally won Lease OCS-A 0512 in BOEM’s
competitive online auction. (Bull Decl. ¶ 18 (ECF No. 21-1)). Plaintiffs have also sued the
Secretary of the Interior in her official capacity. (Compl. ¶ 16).
B. Statutory & Regulatory Framework
1. NEPA
Before a federal agency engages in activity that may “significantly affect[] the quality of
the human environment,” NEPA requires it to prepare “a detailed statement” on “the
environmental impact of the proposed action,” as well as any potential alternative actions that
may be taken. 42 U.S.C. § 4332(2)(c)(i)–(v). The agency must thus take a “hard look” at
environmental consequences before moving forward on a major administrative action. Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976). The purpose of this requirement is to ensure “‘a
fully informed and well-considered decision, not necessarily’ the best decision.” Theodore
Roosevelt Conserv. P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010) (quoting Vermont

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Yankee Nuclear Power Corp. v. Nat. Resources Def. Council, Inc., 435 U.S. 519, 558 (1978)).
The statute sets procedural requirements, but does not mandate certain outcomes. See Robertson
v. Method Valley Citizens Council, 490 U.S. 332, 350 (1989) (“If the adverse environmental
effects of the proposed action are adequately identified and evaluated, the agency is not
constrained by NEPA from deciding that other values outweigh the environmental costs.”).
2. OSCLA
Under the OSCLA, BOEM is authorized to issue leases, easements, or rights-of-way for
offshore renewable energy projects. 43 U.S.C. § 1337(p)(1). BOEM must consult with the U.S.
Coast Guard and other relevant federal agencies, and must consider several factors, including
safety, protection of the environment, conservation of natural resources, and prevention of
interference with reasonable uses of the area, including for fishing or navigation. 43 U.S.C.
§ 1337(p)(1)(C), (4)(A)–(L). Pursuant to these statutory provisions, BOEM has promulgated
regulations governing the leasing process and management of offshore renewable energy
projects. 30 C.F.R. § 585.100 et seq.
C. BOEM’s Leasing Process & Lease OCS-A 0512
BOEM oversees the development of renewable energy sources on the outer continental
shelf. Under its regulations, a private developer may submit an unsolicited proposal to lease any
area of the ocean for a wind energy facility. 30 C.F.R. § 585.230. In September 2011, a
consortium of energy companies proposed the development of a wind energy facility off the
coast of New York, covering approximately 127 square miles of ocean area. (Pl. Ex. C (Project
Application and Lease Request); Ex. K (Amended Lease Request)). Pursuant to its regulations,
BOEM issued a Request for Interest in January 2013 to determine whether there existed
competitive interest in the area. 78 Fed. Reg. 760 (Jan. 4, 2013). After determining that there

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was competitive interest, BOEM published a Call to seek nominations from companies interested
in leasing the area and to gather public input on site conditions, resources, and existing uses of
the lease area. 79 Fed. Reg. 30,643, 30,645 (May 28, 2014).
BOEM then prepared a draft Environmental Assessment (“EA”) which considered the
impacts associated with issuing a lease and the activity that would follow, including conducting
site characterization surveys and installing meteorological towers or buoys for site assessment.
The draft EA was published for public comment in June 2016, 81 Fed. Reg. 36,344 (June 6,
2016), and many of the Plaintiffs submitted comments about how a wind facility at the proposed
lease location would harm their fishing interests and the marine habitat in that area. On October
31, 2016, BOEM published both a Final Sale Notice and a Revised EA, which resulted in a
Finding of No Significant Impact. 81 Fed. Reg. 75,429, 75,438 (Oct. 31, 2016). BOEM’s EA
was limited to assessing the environmental impacts, if any, of pre-construction activity in the
lease area, including conducting surveys and installing, operating, and decommissioning
meteorological towers or buoys. Id. at 75,438.
In December 2016, BOEM conducted an online auction for the lease, in which Statoil
was named the provisional winner, with a bid of approximately $42 million. (Bull Decl. ¶ 18).
This lease has not yet been executed. Once the lease is executed, Statoil will be granted the
exclusive right to conduct site characterization activities and, within one year of the lease
issuance, propose a Site Assessment Plan (“SAP”). 30 C.F.R. §§ 585.601, 585.605. BOEM
must then approve the SAP, reject it, or approve it with modifications. 30 C.F.R. § 585.613. If
BOEM approves the SAP, Statoil may then engage in site assessment, such as conducting
surveys and using towers or buoys to evaluate wind resources, for up to five years. 30 C.F.R.
§ 585.235(a)(2). No later than six months before the end of the five year period, Statoil will then

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have to propose a Construction and Operations Plan (“COP”). 30 C.F.R. § 585.601(b). The
COP includes all data and information to support the plan for the wind facility, as well as
proposals for minimizing environmental impacts. 30 C.F.R. § 585.626(b). Following the COP
proposal, BOEM is required to conduct a NEPA analysis, such as an Environmental Impact
Statement (“EIS”), to determine whether to approve the COP, reject it, or approve it with
modifications. 30 C.F.R. § 585.628(b).
II.

LEGAL STANDARD
In order to prevail on a motion for a preliminary injunction, the movant must show “that

he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary
injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v.
Geren, 553 U.S. 674, 689–90 (2008) (citations omitted). In addition to a likelihood of success
on the merits, the moving party must demonstrate some injury, as “[t]he basis of injunctive relief
in the federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88
(1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506–07 (1959)). If a party
makes no showing of irreparable injury, the court may deny the motion for injunctive relief
without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d
738, 747 (D.C. Cir. 1995).
III.

DISCUSSION
A. Irreparable Harm
The standard for irreparable harm is particularly high in the D.C. Circuit. Plaintiffs have

the “considerable burden” of proving that their purported injuries are “certain, great and actual—

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not theoretical—and imminent, creating a clear and present need for extraordinary equitable
relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C.
2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)) (internal quotation
marks omitted). In addition, “the certain and immediate harm that a movant alleges must also be
truly irreparable in the sense that it is ‘beyond remediation.’” Elec. Privacy Info. Ctr. v. DOJ, 15
F. Supp. 3d 32, 44 (D.D.C. 2014) (citation omitted). Plaintiffs must provide some evidence of
irreparable harm: “the movant [must] substantiate the claim that irreparable injury is likely to
occur” and “provide . . . proof indicating that the harm is certain to occur in the near future.”
Wis. Gas Co., 758 F.2d at 674 (internal quotation marks and citation omitted). This is because
“[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent
with our characterization of injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
To establish irreparable harm under a NEPA claim, Plaintiffs must allege some concrete
injury beyond the procedural injury caused by BOEM’s alleged failure to comply with NEPA
when it conducted its environmental assessment. Fund for Animals v. Clark, 27 F. Supp. 2d. 8,
14 (D.D.C. 1998). Plaintiffs articulate three additional harms from the construction of a wind
facility in the lease area: (1) loss of the ability to fish in areas that are commercially valuable
and significant for the local fishing industry; (2) increased risk of safety hazards for fishermen
and other ships attempting to navigate in shipping lanes near the lease area; and (3) damage to
their interests in enjoying the habitat for scallops, squid, fish, and other marine species.
To meet the standard for irreparable harm, Plaintiffs must present sufficient evidence that
the purported injury is certain, great, actual, imminent, and beyond remediation. Plaintiffs have
failed to do so. Most significantly, Plaintiffs have not shown that their purported injuries are

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imminent or certain. The three articulated injuries would result only from the construction and
operation of a wind energy facility, but any construction of such a facility is years in the future
and subject to further government approval. As described above, once the lease is executed and
issued, up to a year may pass before Statoil first proposes a Site Assessment Plan, which BOEM
must evaluate and decide whether to approve. If the SAP is approved, Statoil may then engage
in surveying and wind evaluation, including installing and operating wind buoys or towers.
Statoil would then have another five years to propose its construction and operations plan to
BOEM, at which point the agency must engage in the lengthy process of preparing an EIS—
which includes receiving and responding to public comments—to consider the environmental
effects of the actual construction and operation of a wind facility. If its COP were approved,
only then could Statoil begin to construct a wind energy facility in the lease area. BOEM also
points out that the issuance of the lease does not deny fishing access to Plaintiffs (Gov’t Opp. at
19), and does not trigger any construction activities that may damage the marine environment.
Plaintiffs’ only argument for why there is an imminent and irreparable harm, despite
construction being years away if it happens at all, is that once the lease is issued Statoil will have
made a significant financial investment in the development of a wind facility and will have
attained some “property rights” in the ocean area, meaning the balance of harms for whether to
issue an injunction later in this case will have changed. In the court’s view, this factor does not
weigh strongly enough to create an imminent harm sufficient to warrant preliminary injunctive
relief. The court maintains its authority to ultimately enjoin the lease in this litigation if
necessary. Moreover, Statoil’s decision to invest in this lease is already made with full
awareness that its proposals for a wind facility may be rejected and it may never construct or
operate such a facility. Its decision whether to invest in a development process that is not certain

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to result in operation of a wind facility does not establish imminent harm for Plaintiffs. For these
same reasons, Plaintiffs have not shown that these purported harms are “beyond remediation.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
In sum, the court concludes that Plaintiffs have failed to establish that their purported
harms are imminent, concrete, or irreparable to warrant preliminary injunctive relief. 1
B. Remaining Factors
The court need not consider the remaining preliminary injunction factors in light of the
lack of irreparable harm. See CityFed Financial Corp., 58 F.3d at 747. However, the court will
briefly address the three remaining factors, none of which weigh strongly for or against
preliminary injunctive relief. With respect to the likelihood of success on their NEPA and
OCSLA claims, Plaintiffs offer numerous arguments for why the EA prepared by BOEM is
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
analyze other potential locations for the wind facility. BOEM counters that the proper time to
assess environmental impacts of construction is years from now once a COP has been proposed,
and that it has no obligation to consider whether a wind energy facility outside of the lease area
might have less environmental impact, only whether the specific lease proposal at issue should
be approved. The D.C. Circuit’s decision in Public Employees for Environmental Responsibility
v. Hopper, 827 F.3d 1077, 1082–83 (D.C. Cir. 2016) does suggest that the proper time for the
agency to consider these environmental impacts may be at the present stage. In that case, the
Circuit considered another wind energy facility and found defects with BOEM’s environmental

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Defendants further argue that Plaintiffs lack standing for these same reasons. However,
Defendants have not moved to dismiss the case due to a lack of standing, and the court need not
consider these arguments in its analysis of the preliminary injunction factors.
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analysis. It ordered a new EIS but chose not to set aside the lease. However, in considering this
case and other precedents, the court determines that the merits here are not so one-sided as to
overcome the lack of clear irreparable harm and justify preliminary relief.
Additionally, as to the balance of equities, both sides present compelling arguments.
BOEM asserts that it, and by extension the public, has an interest in the operation of its wind
energy leasing program, as well as a financial interest in continuing with the lease transaction.
Plaintiffs argue that they have an interest in preserving the status quo to continue pursuing their
commercial fishing activity, and that the public interest is best served by ensuring that federal
agencies properly comply with legal requirements. This balancing does not favor either side.
The court therefore concludes that Plaintiffs have not shown irreparable harm, and none of the
remaining factors weigh in their favor either.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is DENIED.

Date: February 15, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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