Kinsella v. Bureau Of Ocean Energy Management et al

Filing 56

MEMORANDUM AND ORDER: Plaintiffs motion #35 for a preliminary injunction is DENIED. Ordered by Judge Frederic Block on 5/18/2023. (MI)

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 1 of 9 PageID #: 11

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
SIMON V. KINSELLA,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 23-CV-02915-FB-ST

-againstBUREAU OF OCEAN ENERGY
MANAGEMENT; DEB HAALAND,
Secretary of the Interior, U.S.
Department of the Interior;
MICHAEL S. REGAN, Administrator,
U.S. Environmental Protection Agency,
Defendants.
------------------------------------------------x
Appearances:
For the Pro Se Plaintiff:
SIMON V. KINSELLA
P.O. Box 792
Wainscott, N.Y. 11975

For Defendants:
AMANDA STONER
U.S. Department of Justice
150 M St., NE
Washington, D.C. 20002
BRIAN P. HUDAK
U.S. Attorney’s Office for the
District of Columbia
601 D. St., NW
Washington, D.C. 20530
For Intervenor Defendant:
JANICE SCHNEIDER
DEVIN M. O’CONNOR
STACEY VANBELLEGHAM
Lathan & Watkins LLP
555 Eleventh St., N.W.
Ste. 1000
Washington, D.C. 20004
1

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 2 of 9 PageID #: 12

BLOCK, Senior District Judge:
Pro Se Plaintiff Simon Kinsella (“Kinsella”), a resident of the Wainscott
hamlet of the Town of East Hampton, New York, is seeking a preliminary injunction
to halt construction of the South Fork Wind Farm and South Fork Export Cable
Project (the “Project”). Kinsella claims that as a result of the Project, which is
currently under construction, irreparable harm will occur (i) to the drinking water
near the onshore portion of the Project and (ii) to the Atlantic cod population near
the offshore portion of the Project. For the reasons that follow, Kinsella’s motion is
denied.
I.

FACTS AND PROCEDURAL HISTORY

Kinsella’s action challenges the approval of the Project granted by the Bureau
of Ocean Energy Management (“BOEM”), which is part of the United States
Department of the Interior (“DOI”). Specifically, Kinsella argues that BOEM
violated the Administrative Procedure Act (the “APA”) by failing to adequately
consider the Project’s potential harm to the area’s drinking water and the offshore
Atlantic cod population, as well as the Project’s negative economic impact. Kinsella
also argues that the bidding process for the Project was deficient, that BOEM
violated the National Environmental Policy Act (“NEPA”), the Outer Continental
Shelf Lands Act (“OCSLA”), the Coastal Zone Management Act (“CZMA”),
Executive Order 12898, and the Due Process Clause of the Fourteenth Amendment.
2

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 3 of 9 PageID #: 13

On November 2, 2022, Kinsella moved in the U.S. District Court for the
District of Columbia (D.D.C.) for a temporary restraining order, which was denied
one week later. Subsequently, the D.D.C. granted Defendants’ motion to transfer
this case, along with Kinsella’s pending motion for a preliminary injunction, to this
Court since the Project is located in Suffolk County, New York and another case
challenging the same Project is pending before the Court. See Mahoney v. U.S. Dep’t
of the Interior, No. 22-cv-01305, 2022 WL 1093199 (E.D.N.Y. 2022). Kinsella’s
challenge to the Project is largely the same as that brought by the Mahoney plaintiffs,
though he adds to their argument by bringing claims under CZMA, the Fourteenth
Amendment and an executive order, in addition to the APA, NEPA, and OCSLA.
He also does not include the U.S. Army Corp of Engineers as defendants. However,
the bulk of the harm claimed by Kinsella is largely the same as that claimed by the
Mahoney plaintiffs, with the additions of the allegations of harm to the offshore cod
population and the potential economic harm caused by the Project. Because these
harms underpin all of Kinsella’s numerous claims, the Court will address the harms
claimed, rather than each individual cause of action, in explaining why Kinsella is
not entitled to a preliminary injunction.
The Project—the same one challenged by the Mahoney plaintiffs—involves
construction of a wind farm located 35 miles east of Montauk Point, Long Island,
and the onshore cables that export the energy produced by the windmills to the
3

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 4 of 9 PageID #: 14

onshore electric grid in East Hampton. The cables will be contained in underground
trenches that will run through Wainscott, where portions of the groundwater are
contaminated by perfluoroalkyl and polyfluoroalkyl substances (“PFAS”). The
offshore portion of the Project will involve seafloor construction in an area
apparently known for Atlantic cod spawning.
As the D.D.C. pointed out in its November 10, 2022 memorandum and order
transferring the venue of this action, the Project’s “approval process included myriad
opportunities for input from other agencies and stakeholders.” Several federal, state,
and local agencies participated in the process of preparing the Record of Decision,
which approved the Project, and BOEM conducted a public comment period, which
included three public hearings, and the review of nearly 400 submittals from the
public, agencies, and other interested parties.
Ultimately, the permits to conduct the offshore portion of the Project were
issued by Defendants. Permits for the onshore portion of the Project were issued by
the New York Public Service Commission (“NYPSC”) after years of administrative
proceedings which considered the issue of PFAS pollution exacerbation, among
other things. An appeal of this approval was denied in New York State court.
Separately, residents of Wainscott brought an action in New York State court
challenging an easement granted for the trenching in question, which was also
denied. In March 2022, the Mahoney plaintiffs petitioned this Court for a preliminary
4

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 5 of 9 PageID #: 15

injunction to block construction of the onshore portion of the Project, which they
claimed would disrupt PFAS in the ground and irreparably harm their already
contaminated groundwater quality. The Court denied their request the following
month. Kinsella has also brought actions in state court related to the Project.
Now, Kinsella seeks the relief from this Court that he and his neighbors have
repeatedly sought and failed to obtain—a bar to the Project’s construction. However,
Kinsella, like his unsuccessful neighbors, has failed to demonstrate that irreparable
harm will result in the absence of a preliminary injunction. Therefore, his motion for
the extraordinary relief of a preliminary injunction is denied.
II.

PRELIMINARY INJUNCTION

“A plaintiff seeking a preliminary injunction must establish 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 Resources Defense Council, Inc., 555
U.S. 7, 20 (2008). If an injunction “disrupt[s] the status quo, a party seeking one
must meet a heightened legal standard by showing ‘a clear or substantial likelihood
of success on the merits.’” N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,
883 F.3d 32, 37 (2d Cir. 2018) (quoting N.Y. Civil Liberties Union v. N.Y.C. Transit
Auth., 684 F.3d 286, 294 (2nd Cir. 2012)).

5

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 6 of 9 PageID #: 16

“Perhaps the single most important prerequisite for the issuance of a
preliminary injunction is a demonstration that if it is not granted the applicant is
likely to suffer irreparable harm before a decision on the merits can be rendered.”
Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir.
1983). To establish irreparable harm, a movant “must demonstrate an injury that is
neither remote nor speculative, but actual and imminent and that cannot be remedied
by an award of monetary damages.” Shapiro v. Cadman Towers, Inc., 51 F.3d 328,
332 (2d Cir. 1995) (internal quotation omitted).
In addition, because Kinsella’s claims concern an administrative agency
decision, the Court reviews his claims under the standard provided by the APA.
Courts shall set aside agency action when it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
Agency decision-making is arbitrary and capricious when the agency bases its
decision on “factors which Congress has not intended it to consider,” when the
agency “entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency,” or
its reasoning “is so implausible that it could not be ascribed to a difference in view
or the product of agency expertise.” Alzokari v. Pompeo, 973 F.3d 65, 70 (2d Cir.
2020) (internal quotation marks and citation omitted).

6

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 7 of 9 PageID #: 17

III.

ANALYSIS

First, Kinsella argues that the digging for these trenches will disrupt the PFAS
in the ground, exacerbating existing groundwater pollution in the area. Though the
area and manner in which Kinsella argues that PFAS will be disrupted differs from
that of the Mahoney plaintiffs, the harm claimed is the same. The same reasoning
that the Court applied in denying the Mahoney plaintiffs’ request for a preliminary
injunction applies here. Kinsella’s argument likewise fails on the first prong of the
preliminary injunction analysis: irreparable harm.
Kinsella need not show that irreparable harm is a guaranteed outcome, but he
must show that it is likely. Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 22 (2008). “Issuing a preliminary injunction based only on a possibility of
irreparable harm is inconsistent with [the Supreme Court’s] 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.” Id. Kinsella has not met his
burden of demonstrating a likelihood of harm. Aside from the fact that New York
State agencies issued the permits for the onshore portion of the Project, not BOEM,
and enjoinment of its authorization of the Project would not halt the onshore portion
of the Project, the NYPSC has already found that the Project as proposed will not
exacerbate existing PFAS, in part because of mitigation measures included in the
Project’s plan. And, even if the Project did ultimately exacerbate PFAS
7

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 8 of 9 PageID #: 18

contamination, PFAS contamination can be remediated post-facto. See Mahoney
2022 WL 1093199, at *2.
Next, Kinsella argues that the seafloor construction undertaken to build the
offshore portion of the Project will cause irreparable harm to the cod population,
which will in turn drive up the cost of cod. Not only is this argument speculative, far
from meeting the standard of a likelihood of harm, but it points to a financial harm
generally outside the purview of injunctive relief. It is well-settled that “[m]onetary
loss alone will generally not amount to irreparable harm.” Borey v. National Union
Fire Ins. Co. of Pittsburgh, Pennsylvania, 934 F.2d 30, 34 (2d Cir. 1991). Kinsella’s
unsubstantiated argument about the Project’s potential effect on the price of cod and
the harm he may suffer as a result is exactly the sort of speculative argument that
Borey forecloses.
The same is true of Kinsella’s final harm claimed: a potential increase in
electricity prices in the area resulting from the Project’s expense. Kinsella argues
that the Project is based on “one-sided economic[s]” and will cause an increase in
electricity prices in the area, which could be disproportionately borne by low-income
residents. This argument likewise fails at the preliminary injunction stage for its
failure to show a likelihood of irreparable harm and its singular basis on monetary
harm that could be remedied with standard damages. See id.

8

Case 2:23-cv-02915-FB-ST Document 56 Filed 05/18/23 Page 9 of 9 PageID #: 19

Finally, as with Mahoney, Kinsella waited until several bites at the apple were
taken in various judicial and administrative forums, with significant passage of time,
before filing this action. This time lapse “undercuts the sense of urgency that
ordinarily accompanies a motion for preliminary relief and suggests that there is, in
fact, no irreparable injury.” Tough Traveler, Ltd. v. Outbound Prod., 60 F.3d 964,
968 (2d Cir. 1995) (quoting Citibank, N.A. v. Citytrust, 756 F.2d 273, 277 (2nd Cir.
1985)).
CONCLUSION
Plaintiff’s motion for a preliminary injunction is DENIED.
SO ORDERED.
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
May 18, 2023

9