UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) FISHERIES SURVIVAL FUND, et al., ) ) Plaintiffs, ) ) v. ) Case No. 16-cv-2409 (TSC) ) SALLY JEWELL, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

This case concerns a Bureau of Ocean Energy Management (“BOEM”) plan to lease a

nautical area off the coast of New York to Defendant-Intervenor Statoil Wind US, LLC

(“Statoil”), for development of a wind energy facility. Plaintiffs 1, including the Fisheries

Survival Fund, claim that in issuing the lease, BOEM violated the National Environmental

Policy Act (“NEPA”), the Outer Continental Shelf Lands Act (“OCSLA”), and the

Administrative Procedure Act (“APA”). Plaintiffs filed a motion for preliminary injunction,

which this court denied. Memorandum Opinion, ECF No. 26. Now before the court are

Plaintiffs’ Motion for Summary Judgment, ECF No. 39, Defendant-Intervenor’s Cross-Motion

for Summary Judgment, ECF No. 40, and Defendants’ Motion for Summary Judgment, ECF No.

42. For the reasons stated herein, Plaintiffs’ motion will be DENIED, Defendants’ motion will

be GRANTED, and Defendant-Intervenor’s motion will be DENIED as moot.

1 The other Plaintiffs are: Borough of Barnegat Light, NJ; the Town Dock; Seafreeze Shoreside; Sea Fresh USA; Rhode Island Fishermen’s Alliance; Garden State Seafood Association; Long Island Commercial Fishing Association; the Town of Narragansett, RI; the Narragansett Chamber of Commerce; the City of New Bedford, MA; and the Fishermen’s Dock Co-Operative of Point Pleasant. 1 I. BACKGROUND

A. Statutory & Regulatory Framework

1. OCSLA

As amended by the Energy Policy Act of 2005,

Stat. 594 (2005),

OCSLA authorizes BOEM to issue leases, easements, or rights-of-way for offshore renewable

energy projects.

(p)(1)(C). In exercising this authority, BOEM is required to

consult with the U.S. Coast Guard and other relevant federal agencies, and must consider several

factors that include, inter alia, safety, protection of the environment, prevention of waste,

conservation of natural resources, national security interests, and—critically—“the location of . .

. a lease. . . for an area of the outer Continental Shelf” and “any other use of the sea or seabed,

including use for a fishery, a sealane, a potential site of a deepwater port, or navigation.”

§

1337(p)(4)(A)–(L) & (J)(i)–(ii).

2. NEPA

NEPA was enacted to establish “a national policy [to] encourage productive and

enjoyable harmony between man and his environment,” to “prevent or eliminate damage to the

environment,” and “to enrich the understanding of the ecological systems and natural resources

important to the Nation.”

; see also Dep’t of Transp. v. Pub. Citizen,

, 756–57 (2004). NEPA serves these goals by imposing “procedural requirements on federal

agencies with a particular focus on requiring agencies to undertake analyses of the environmental

impact of their proposals and actions.” Pub. Citizen, 541 U.S. at 756–57; Theodore Roosevelt

Conservation P’ship v. Salazar,

(D.C. Cir. 2010) (noting that “[NEPA] is an

‘essentially procedural’ statute, meant to ensure ‘a fully informed and well-considered decision,

not necessarily’ the best decision”) (quoting Vermont Yankee Nuclear Power Corp. v. Natural

2 Res. Def. Council, Inc.,

(1978)). The statute requires that the relevant agency

(1) “consider every significant aspect of the environmental impact of a proposed action,”

Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,

(1983) (quoting

Vermont Yankee,

), and (2) “inform the public that the agency has considered

environmental concerns in its decisionmaking process.” Weinberger v. Catholic Action of

Hawaii/Peace Educ. Project,

(1981).

“NEPA requires that when an agency proposes a ‘major Federal action[] significantly

affecting the quality of the human environment,’ the agency must prepare and circulate for

public review and comment an environmental impact statement (“EIS”) that examines the

environmental impact of the proposed action and compares the action to other alternatives.”

Theodore Roosevelt Conservation P’ship,

(quoting

(2)(C)); see

also Sierra Club v. Van Antwerp,

(D.C. Cir. 2011). Nevertheless, an EIS is

not always necessary. See Public Citizen v. NHTSA,

, 265 (1988) (“NEPA requires

the preparation of a complete EIS for ‘major federal actions significantly affecting the quality of

the human environment.’”) (emphasis in original). Agencies may “prepare a more limited

document”—known as an Environmental Assessment (“EA”)—if a proposed action is neither

categorically excluded from the EIS requirement nor of the kind that would normally require an

EIS. See

(a)–(b); Pub. Citizen,

(“CEQ regulations allow an

agency to prepare . . . an [EA] . . . if the agency’s proposed action neither is categorically

excluded from the requirement to produce an EIS nor would clearly require the production of an

EIS.”). An EA is a “concise public document” intended to “[b]riefly provide sufficient evidence

and analysis for determining whether to prepare an environmental impact statement or a finding

of no significant impact.”

(a)(1); Pub. Citizen, 541 U.S. at 757–58. Where

3 preparation of an EA leads an agency to decide that an EIS is unnecessary, the agency is required

to issue a “finding of no significant impact”—“a document . . . briefly presenting the reasons

why an action . . . will not have a significant effect on the human environment and for which an

environmental impact statement will therefore not be prepared.” 40 C.F. R. §§ 1501.4(e),

1508.13.

B. BOEM’s Leasing Process

In accordance with OCSLA, BOEM promulgated a series of regulations governing the

leasing and management of offshore renewable energy projects. See

.200–234.

Pursuant to these regulations, the commercial leasing process may be initiated by both solicited

and unsolicited applications. A solicited application is one in which BOEM itself identifies the

potential development site and initiates the leasing process by publishing a notice of Request for

Interest (“RFI”) or a Call for Information and Nominations in the Federal Register. See

, 585.211(a). An unsolicited application is one in which a potential developer

applies for a site not otherwise under consideration by BOEM. See

.

Upon receiving an unsolicited request, BOEM publishes a RFI to seek public comment

and determine whether there is competitive interest from other developers.

§ 585.231(b). If

there is competitive interest, BOEM proceeds with the competitive process. Id. § 585.231(c)(1).

Otherwise, it publishes a notice of Determination of No Competitive Interest and follows a

separate procedure. Id. § 585.231(d)–(i). Regardless of the procedure adopted in any case,

BOEM must consult throughout the leasing process with state task forces, other state and local

representatives, and with representatives of Indian Tribes whose interests may be affected. Id.

§§ 585.102(e), 585.211(a)–(d), 585.231(e).

4 Before issuing a lease, BOEM follows a four-step procedure, issuing a Call for

Information and Nominations, completing the Area Identification process, publishing a Proposed

Sale Notice, and publishing a Final Sale Notice. Id. § 585.211(a)–(d). Once BOEM has issued a

lease, the lessee must submit a Site Assessment Plan for review before any assessment activity

takes place. Id. §§ 585.601, 585.605. Even after completing a site assessment, a lessee may not

begin construction until it has submitted, and BOEM has approved, a Construction and

Operations Plan. Id. § 585.620(c). BOEM can accept, reject, or accept with modifications a

lessee’s Site Assessment or Construction and Operations Plan, id. §§ 585.613, 585.628, and must

analyze the potential environmental impacts of the plans. See id. §§ 585.613, 585.620(c).

C. Lease OCS–A 0512

In September 2011, a consortium of energy companies consisting of the New York Power

Authority, Long Island Power Authority, and Consolidated Edison (collectively, “the

Consortium”), proposed developing a wind energy facility covering approximately 81,500 acres

of ocean off the coast of New York. NYAR-0074853, 0074854. Due to safety concerns about

shipping lanes, the Consortium later amended the request to cover 81,130 acres, or about 127

square miles. NYAR-0074140. The Consortium claims the proposed project has “the potential

to be the largest offshore wind energy facility in the United States.” NYAR-0074853. Since the

Consortium’s request was unsolicited, BOEM initiated an RFI on January 4, 2013 to gauge other

companies’ interest in developing the area.

-02 (Jan. 4, 2013). The RFI also

requested that “interested and affected parties comment and provide information about site

conditions and multiple uses within the area identified in this notice that would be relevant to the

proposed project or its impacts.”

at 760 –61.

5 After reviewing nominations of interest and acknowledging competitive interest in the

area, BOEM initiated the competitive leasing process. Compl. ¶ 54. On May 28, 2014, BOEM

published (1) a Notice of Intent to prepare an EA and (2) a Call for Information and Nominations

from companies interested in commercial wind energy leases in the proposed wind farm area.

,643–44 (May 28, 2014);

. BOEM also began the “Area

Identification” process to “identify offshore locations that appear most suitable for wind energy

development” and “designat[e] . . . an area with the greatest wind resource potential, minimal

environmental and space use conflict, and possible alternatives for environmental analysis.”

NYAR-0044172;

(b). BOEM completed this process on March 14, 2016,

thereby marking the area as available for lease. See NYAR-0045776.

On June 6, 2016, BOEM published a “Proposed Sale Notice for Commercial Leasing for

Wind Power on the Outer Continental Shelf Offshore New York” in the Federal Register.

(June 6, 2016) (NYAR-0047230). The Proposed Sale Notice included a sixty-

day comment period, which closed on August 6, 2016.

On June 6, BOEM also published an

EA, along with a Notice of Availability for a thirty-day public comment period.

(June 6, 2016) (NYAR-0047238). According to the Notice of Availability, the EA

focused on assessing the potential impact of and reasonable alternatives to “commercial wind

lease issuance, site characterization activities (geophysical, geotechnical, archaeological, and

biological surveys) and site assessment activities (including the installation and operation of a

meteorological tower and/or buoys).”

The Notice also stated that “[s]hould a lessee propose

to construct a commercial wind facility through submission of a [Construction and Operations

Plan], BOEM would conduct a separate site and project-specific [NEPA] analysis, likely an

[EIS], and would provide additional opportunities for public involvement . . . .”

After

6 requests from Plaintiff Fisheries Survival Fund and other groups, BOEM extended the public

comment period to July 13, 2016. Compl. ¶ 62.

On October 31, 2016, BOEM published the Final Sale Notice for the lease sale of the

area.

(Oct. 31, 2016) (NYAR-0075588). BOEM determined that fourteen

different bidders were “legally, technically, and financially qualified to hold a commercial wind

lease” and to bid in the auction.

(NYAR-0075589). BOEM also published its

revised EA, which found no significant impact for commercial wind lease issuance and related

activities within the area.

(Oct. 31, 2016). The finding of no significant

impact concluded that “the reasonably foreseeable environmental impacts . . . would not

significantly impact the quality of the human environment,” and “therefore, the preparation of an

environmental impact statement [was] not required.” Id.; see also NYAR-0074241. The EA

stated that “BOEM reduces its impacts early in the planning process by conducting site

identification through public stakeholder meetings to avoid areas that may have significant

impacts on the environment, including marine mammals.” NYAR-0074521.

On December 15 and 16, BOEM held a lease auction, which Statoil won with a

$42,469,725 bid. See Commercial Lease of Submerged Lands for Renewable Energy

Development on Continental Shelf (NYAR-0046753). BOEM and Statoil executed the lease on

March 15, 2017. NYAR-0046759. The lease grants Statoil the exclusive right to conduct site

characterization activities and, within one year of lease issuance, to propose a Site Assessment

Plan. NYAR-0046753;

, 585.605. If BOEM approves the Plan, Statoil will

have five years to engage in site assessment—including conducting surveys and using towers or

buoys to evaluate wind resources—and propose a Construction and Operations Plan,

(a)(2), 585.601(b), which must include detailed data and information to support the

7 plan for the wind facility, and proposals for minimizing environmental impact.

(b). BOEM would then conduct “an appropriate NEPA analysis” based on the

information included in the Construction and Operations Plan, before deciding whether to

approve the Plan.

(b).

II. LEGAL STANDARD

The APA requires courts to “set aside any agency action that is ‘arbitrary and capricious,

an abuse of discretion, or otherwise not in accordance with law.”

(2)(A). In

assessing a summary judgment motion brought under the APA, courts are “not empowered to

substitute [their] judgment for that of the agency.” Beyond Nuclear v. U.S Dep’t of Energy,

(D.D.C. 2017) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe,

(1971)). Rather, the court’s role is to “determine whether or not as a matter of law

the evidence in the administrative record permitted the agency to make the decision it did.” Coe

v. McHugh,

, 239–40 (D.D.C. 2013) (quoting Occidental Eng’g Co. v. INS,

, 769–70 (9th Cir. 1985)).

Generally, an agency action is arbitrary if:

the agency has relied on factors which Congress has not intended it to consider, 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 is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Delaware Riverkeeper Network v. FERC,

(D.C. Cir. 2014) (quoting Motor

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.,

(1983)). This

standard also applies when assessing compliance with NEPA and the adequacy of an EIS. City of

Olmsted Falls, OH v. FAA,

(D.C. Cir. 2002) (citing Marsh v. Oregon Natural

Resources Council,

(1989)). “Courts may not use their review of an agency’s

8 environmental analysis to second-guess substantive decisions committed to the discretion of the

agency,” Del. Riverkeeper Network,

, and must instead “review the EIS to

‘ensure that the agency took a “hard look” at the environmental consequences of its decision to

go forward with the project.’” Olmsted Falls,

(quoting City of Grapevine, Tex. v.

DOT,

, 1503–04 (D.C. Cir. 1994)).

III. DISCUSSION

The parties’ motions for summary judgment present two broad issues: (1) whether

Defendants violated NEPA by improperly segmenting their NEPA analysis, failing to consider a

reasonable range of alternatives, and failing to prepare an EIS in deciding the site of the

proposed wind farm area; and (2) whether Defendants violated their obligations under OCSLA

by failing to consider a number of relevant factors in the site selection process, failing to

consider those factors in proceeding with the lease sale, and/or acting in accordance with a

regulatory procedure that exceeds the authority granted under OCSLA. Pls. Mot. Summ. J. at

38–47, 47–54, ECF No. 39-1; Def. Intervenors Mot. Summ. J. at 17–24, 24–32, ECF No. 40;

Defs. Mot. Summ. J. at 29–44, 45–54, ECF No. 42. The parties also raise issues of standing and

constitutional ripeness. See, e.g., ECF No. 42 at 22–28. As these latter issues present

jurisdictional questions, this court will address them at the threshold.

A. Standing

Plaintiffs, who bear the burden of establishing standing, see Kokkonen v. Guardian Life

Ins. Co. of Am.,

(1994), claim a procedural injury relating to BOEM’s

issuance of the lease. Plaintiffs contend that “the heart of [their] injury” results from BOEM’s

decision to issue the lease on key fishing grounds “prior to obtaining any public input or

considering fishing, environmental, or safety interests with respect to the physical boundaries of

9 that area,” in violation of NEPA and OCSLA. ECF No. 39-1 at 37. Plaintiffs further allege that

they will be injured by the “exploration and development of a wind farm” in the area that will

likely follow from issuance of the lease and “directly damage the natural resources in that area, .

. . physically preclude . . . fisheries from operating fishing vessels in that area, . . . [and] pose

navigational safety issues.” ECF No. 39-1 at 37.

Defendants respond that Plaintiffs’ allegations of harm do not establish standing “because

they all relate to the possible future approval of the construction of a wind energy facility,” rather

than “the site characterization and site assessment activities associated with issuance of the

lease.” Defs. Opp’n Mot. at 23, ECF No. 43. According to Defendants, Plaintiffs’ alleged future

injuries “fail to demonstrate that the construction of a wind energy facility is substantially

probable,” ECF No. 53 at 3 (emphasis in original), insofar as the construction depends on future

events—including the preparation and approval of multiple reports and a development plan—

that have not occurred and may not occur for six years, if at all. ECF No. 43 at 24.

Standing is a jurisdictional prerequisite—an “irreducible constitutional minimum” that

requires a plaintiff to show: (1) an “injury in fact” that is “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical”; (2) that the injury is “fairly traceable to the

challenged action of the defendant”; and (3) that it is “likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Chamber of Commerce of U.S. v.

E.P.A.,

(D.C. Cir. 2011) (quoting Bennett v. Spear,

(1997));

Summers v. Earth Island Inst.,

(2009) (noting that standing doctrine “requires

federal courts to satisfy themselves that ‘the plaintiff has alleged such a personal stake in the

outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction.”) (quoting

Warth v. Seldin,

(1975)).

10 When a party alleges injury to its procedural rights, “courts relax the normal standards of

redressability and imminence.” Sierra Club v. Fed. Energy Regulatory Comm’n,

(D.C. Cir. 2016). In such cases, “the primary focus of the standing inquiry is not the imminence

or redressability of the injury to the plaintiff, but whether a plaintiff who has suffered a personal

and particularized injury has sued a defendant who has caused that injury.” City of Dania Beach

v. FAA,

(D.C. Cir. 2007) (quoting Fla. Audubon Soc’y v. Bentsen,

, 664 (D.C. Cir. 1996) (en banc)). “To establish injury-in-fact in a ‘procedural injury’ case,

petitioners must show that ‘the government act performed without the procedure in question will

cause a distinct risk to a particularized interest of the plaintiff.’”

at 1185 (quoting Fla.

Audubon Soc’y, 94 F.3d at 663). In other words, “[a] violation of the procedural requirements of

a statute is sufficient to grant a plaintiff standing to sue, so long as the procedural requirement

was designed to protect some threatened concrete interest of the plaintiff.” City of Dania Beach,

(quoting City of Waukesha v. EPA,

(D.C. Cir. 2003)); see

also Sierra Club,

(“[A]n adequate causal chain must contain at least two links:

one connecting the omitted [NEPA analysis] to some substantive government decision that may

have been wrongly decided because of the lack of [proper NEPA analysis] and one connecting

that substantive decision to the plaintiff’s particularized injury.”). A plaintiff alleging a violation

of some procedural right “never has to prove that if he had received the procedure the substantive

result would have been altered,” and need only show “that the procedural step was connected to

the substantive result.” Sugar Cane Growers Cooperative v. Veneman,

(D.C.

Cir. 2002).

Plaintiffs are entitled to bring their OCSLA and NEPA claims under a procedural

standing theory because they have demonstrated a threat to a sufficiently concrete and

11 particularized interest in the wind farm area, and the alleged procedural deficiencies are

connected to a substantive governmental decision—issuing the lease—that is in turn connected

to a risk of harm to Plaintiffs’ identified interests. See Dania Beach,

(describing need for distinct risk to particularized interest in procedural injury context); Sierra

Club,

(discussing components of an adequate causal chain in procedural injury

context). The Plaintiffs in this case include those who use or depend on the use of the wind farm

area and the natural resources contained therein for fishing, navigation, and associated economic

and recreational benefits. See ECF No. 39-1 at 15–17, 21–25. The use or enjoyment of wildlife

is a cognizable interest for standing purposes, see Ctr. for Biological Diversity v. U.S.

Department of Interior,

(D.C. Cir. 2009) (“CBD”) (citing Lujan v. Defenders

of Wildlife,

, 562–63 (1992)) (affirming the appropriateness of an interest in

enjoyment of wildlife), and here, that interest is concrete and particularized insofar as it refers to

specific marine species and activities within a distinct, identified area. See Bentsen, 94 F.3d at

667–68 (emphasizing need for particularization of alleged environmental interests in form of

geographic nexus to claim of particularized injury). Furthermore, Plaintiffs claim—in multiple

declarations—that their interest in the use or enjoyment of the area under the lease will be

damaged or altogether precluded by development. See, e.g., ECF No. 3-1 at 2–3, 5–9, 133–40,

115–16.

The court notes that the lease only authorizes site characterization and assessment, and

that construction—the development phase involving the most transformative activity—has not

yet received approval, and depends on multiple contingencies occurring over a six-year period.

See ECF No. 43 at 24; ECF No. 53 at 11. Nevertheless, this fact does not render Plaintiffs’

alleged injury too speculative or hypothetical for purposes of standing. The relevant injury here

12 is the injury that Plaintiffs allege regarding the development process as a whole, including the

lease sale phase. While the lease itself may not authorize construction of the wind farm, it is

undeniably a milestone in the lessee’s plan to transform an area currently used for industrial and

recreational fishing into an area that Plaintiffs allege is likely to be rendered unsuitable for such

purposes. Although the lease does not dispel all contingencies associated with the project, it

does increase the probability that any planned development will occur in the designated area. In

other words, Plaintiffs have alleged a particularized threat to their concrete interest in use of the

leased area insofar as their stated concern is the progress of a development project affecting that

interest.

It also appears that the challenged leasing decision is causally connected to an increased

risk of harm to Plaintiffs’ particularized interests, insofar as the decision increases the risk to

their enjoyment of the marine life in the area likely to be affected by the development. See CBD,

(approving procedural theory of standing because “adoption of an irrationally

based Leasing Program could cause a substantial increase in the risk to [Petitioners’] enjoyment

of the animals affected by the offshore drilling”); see also

(noting need to connect

substantive decision that may have been wrongly decided to a particularized injury). For these

reasons, Plaintiffs have successfully articulated a procedural theory of Article III standing. 2

2 While the analysis of the standing issue applies directly to the municipal plaintiffs, the associational plaintiffs must satisfy additional requirements. Organizations have standing to sue on behalf of their members if: “(1) at least one of [the organization’s] members would have standing to sue in his or her own right; (2) ‘the interests it seeks to protect are germane to the organization’s purpose’; and (3) ‘neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Sierra Club v. FERC,

(D.C. Cir. 2016) (quoting WildEarth Guardians v. Jewell,

(D.C. Cir. 2013)). Here, the associational plaintiffs have standing to sue on behalf of their members, whose declarations demonstrate that they share the interest and injury identified above. See, e.g., ECF No. 3-1 at 1– 5, 133–40, 115–16. Moreover, the associational plaintiffs’ organizational purposes—broadly, to promote the interests of Atlantic fishermen—plainly relate to the fishing industry and commercial 13 B. Ripeness of NEPA Claims

Plaintiffs contend that their NEPA 3 claims are ripe because “the Lease precludes any

further action for the most critical stage of the leasing process—project siting—and constitutes

an irretrievable commitment of resources,” the key trigger for an agency’s NEPA obligations.

Pls. Opp. to Def. & Def. Intervenor Mot. at 23, ECF No. 48. Defendants argue that the NEPA

claims are not ripe because they “allege that BOEM failed to properly analyze the environmental

impacts of constructing and operating a wind energy facility,” even though BOEM has yet to

approve the construction or operation of such a facility. ECF No. 43 at 25.

The ripeness doctrine is related to standing, and requires that a litigant’s claims be

“constitutionally and prudentially ripe,” so as to protect (1) “the agency’s interest in crystallizing

its policy before that policy is subjected to judicial review,” (2) “the court’s interests in avoiding

unnecessary adjudication and in deciding issues in a concrete setting,” and (3) “the petitioner’s

interest in prompt consideration of allegedly unlawful agency action.” Nevada v. Department of

Energy,

(D.C. Cir. 2006) (quoting Eagle–Picher Indus., Inc. v. EPA,

, 915 (D.C. Cir. 1985)). In “determining whether a dispute is ripe for review, courts consider

‘both the fitness of the issues for judicial decision and the hardship to the parties of withholding

court consideration.’” Am. Tort Reform Ass’n v. Occupational Safety & Health Admin.,

(D.C. Cir. 2013) (quoting Abbott Laboratories v. Gardner,

(1967)).

or recreational fishing. See ECF No. 39 at 2, 34 (describing plaintiffs and organizational purpose); Ctr. for Sustainable Economy v. Jewell,

(D.C. Cir. 2015) (“CSE”) (“The germaneness requirement [of associational standing] mandates ‘pertinence between litigation subject and organizational purpose.’”) (quoting Humane Soc. of the United States v. Hodel,

(D.C. Cir. 1988)). 3 Plaintiffs’ OCSLA claims “concern OCSLA requirements that are implicated at the initial stage of a leasing program,” and are therefore ripe. CBD,

. 14 Courts must also consider: “(1) whether delayed review would cause hardship to the plaintiffs;

(2) whether judicial intervention would inappropriately interfere with further administrative

action; and (3) whether the courts would benefit from further factual development of the issues

presented.” Nevada,

(quoting Ohio Forestry Ass’n, Inc. v. Sierra Club,

(1998)). Typically, “[a] claim is not ripe for adjudication if it rests upon contingent

future events that may not occur as anticipated, or indeed may not occur at all.” Nevada,

(quoting Texas v. United States,

(1998)).

An agency’s NEPA obligations mature “only once it reaches a ‘critical stage of a decision

which will result in irreversible and irretrievable commitments of resources to an action that will

affect the environment.’” CBD,

(quoting Wyoming Outdoor Council v. United

States Forest Service,

(D.C. Cir. 1999) (“Wyo. Outdoor Council II”)). Cases

involving multiple-stage leasing programs—arising in the oil and gas context—indicate that an

agency reaches this critical stage when it “no longer retain[s] the authority to preclude all surface

disturbing activities subsequent to issuing an oil and gas lease,” such that “an EIS assessing the

full environmental consequences of leasing must be prepared before commitment to any actions

that might affect the quality of the human environment.” Wyo. Outdoor Council II,

(alteration in original) (quoting Sierra Club v. Peterson,

(D.C. Cir.

1983)); see also Conner v. Burford,

(9th Cir. 1988) (“[U]nless surface-

disturbing activities may be absolutely precluded, the government must complete an EIS before

it makes an irretrievable commitment of resources . . . .”). In other words, lease issuance triggers

15 NEPA obligations unless the issuing agency “retain[s] the authority to preclude all surface

disturbing activities.” Wyo. Outdoor Council II,

. 4

Though the parties agree that the above legal standard is appropriate, they disagree on

how it should be applied. Plaintiffs contend that to avoid making an irreversible commitment of

resources, the agency making a lease sale must unilaterally retain “the absolute right to prevent

all surface-disturbing activity.” ECF No. 48 at 22 (quoting Conner,

) (emphasis

in original). They argue that BOEM does not retain the absolute right because its ability to

cancel a lease is limited by lease criteria and Statoil’s regulatory compliance. ECF No. 48 at 11–

12. Defendants respond that the lease language establishes BOEM’s absolute authority to

preclude activity in the leased area, that Plaintiffs misunderstand the applicable legal standard in

contending otherwise, and that “because BOEM retains the authority to deny a [Construction and

Operations Plan], the issuance of the lease to Statoil was not an irreversible and irretrievable

commitment of resources.” ECF No. 53 at 14, 15. In the court’s view, the applicable regulations

and the terms of the lease preclude Statoil from engaging in any construction activities, and vest

complete authority in BOEM to preclude such activity in the leased area before the Construction

and Operations Plan is approved. Therefore, issuing the lease does not constitute an irreversible

and irretrievable commitment of resources. See Wyo. Outdoor Council II,

.

Accordingly, Plaintiffs’ NEPA claims must be dismissed as unripe at this stage.

4 Plaintiffs do not address ripeness in their memorandum in support of their motion for summary judgment. In their opposition to Defendants’ motion, Plaintiffs appear to question in passing whether the standard in cases involving oil and gas leases should apply in the Outer Continental Shelf context or to renewable energy leases. ECF No. 48 at 19. Nevertheless, they do not offer any argument as to why the court should decline to apply that standard, and do not offer any alternative standard, instead opting to argue their position from within the oil and gas lease legal framework, which the court finds analogous and appropriate. 16 On its own, the lease at issue does no more than grant Statoil the exclusive right to submit

a Site Assessment Plan and Construction and Operations Plan to BOEM for approval. NYAR-

0046754. No activity is permitted absent the submission and approval of these plans, NYAR-

0046754, and the lease provides that (1) “[the] lease does not, by itself, authorize any activity

within the leased area,” (2) “the Lessor will decide whether to approve a SAP or COP in

accordance with the applicable regulations in 30 CFR Part 585,” and (3) “the Lessor retains the

right to disapprove a SAP or COP based on the Lessor’s determination that the proposed

activities would have unacceptable environmental consequences . . . .” NYAR-0046754.

Moreover, BOEM regulations provide that a lease can be cancelled if, after “notice and

opportunity for a hearing,” BOEM determines that “continued activity under the lease or grant”:

(i) Would cause serious harm or damage to natural resources; life (including human and wildlife); property; the marine, coastal, or human environment; or sites, structures, or objects of historical or archaeological significance; and (ii) That the threat of harm or damage would not disappear or decrease to an acceptable extent within a reasonable period of time; and (iii) The advantages of cancellation outweigh the advantages of continuing the lease or grant in force.

(b)(4)(i)–(iii).

The thrust of Plaintiffs’ first argument is that BOEM’s authority to preclude activity in

the wind farm area cannot be absolute if it is subject to conditions, and that the criteria set forth

above are conditions. Thus, Plaintiffs argue, the lease represents a commitment of resources, and

therefore their NEPA claims are ripe. See Conner, 848 F.2d at 1449–50 (noting that leases

permitting surface-disturbing activities subject to conditions do not retain authority to absolutely

preclude activities and, therefore, constitute a commitment of resources); Peterson,

, 1414–15 (same).

17 Though it is true that the criteria may be “conditions” in the sense that BOEM must make

certain findings—after notice and an opportunity for a hearing—before disapproving a

Construction and Operations Plan and/or cancelling a lease, it does not necessarily follow that

“BOEM’s own regulations preclude BOEM from changing its mind unilaterally.” ECF No. 48 at

20. That is because none of the “conditions” at issue involve or presuppose any transfer of

authority to prevent lease activities out of BOEM’s hands, which was not the case with the leases

in Peterson and Conner.

Peterson involved an oil and gas leasing program for certain National Forests,

administered by the United States Forest Service and Department of the Interior (“Department”).

. The leasing program divided lands into those designated as “highly

environmentally sensitive” and “non-highly environmentally sensitive.”

Leases contained

either a “No Surface Occupancy Stipulation (NSO Stipulation)”—preventing any surface

activities without departmental approval—or stipulations representing “reasonable,” “mitigating”

conditions on drilling and other activities, but with no ability to bar those activities entirely.

. The D.C. Circuit concluded that the Department had failed to comply with NEPA

by neglecting to conduct a full EIS before issuing leases that relinquished the authority to

prevent all development.

. Critical to the Circuit’s reasoning was that under the

terms of the leases without NSO Stipulations, “the government could not deny an application for

a permit to drill, but could only enforce the lease stipulations to control and/or mitigate any

environmental damage which result[s] from the drilling.”

at 1414 & n.7 (emphasis in

original).

Conner involved the same legal issue in virtually identical factual circumstances. 848

F.2d at 1444–46 (describing NEPA challenge to leasing program that issued NSO or non-NSO

18 oil and gas leases in forest land). Citing Peterson, the Ninth Circuit concluded that issuing non-

NSO oil and gas leases effectively traded the authority to preclude all activity for the authority to

regulate that activity, and such a trade required an EIS. See

(emphasis added). 5

In this case, the criteria at issue do not contemplate trading preclusion authority for

regulatory authority. The criteria do not alter the fact that Statoil must submit Site Assessment

and Construction and Operations Plans before starting development, or that BOEM retains the

authority to prevent any activity in the wind farm area by rejecting any Site Assessment or

Constructions and Operations Plan that Statoil submits. The criteria stem from BOEM’s

commitment to “NEPA’s goal of insuring that federal agencies infuse in project planning a

thorough consideration of environmental values,”

, and ensuring that NEPA-related

preclusion authority is exercised according to due process and for NEPA-related reasons.

Accordingly, the presence of these “conditions” does not transform the lease into an irretrievable

commitment of resources. 6

Plaintiffs also contend that their NEPA claims are ripe because the lease is the final word

“for the most critical stage of the leasing process—the siting of development,” ECF No. 48 at 14,

and therefore constitutes an irretrievable commitment of resources. But this contention

5 Although these cases do not address ripeness per se, their analysis applies here because an agency’s irretrievable commitment of resources also triggers the obligation to conduct an EIS. See

; CBD,

. 6 Plaintiffs also contend that

(f)(2) constitutes a “condition” on BOEM’s right to absolutely preclude development activities, because it indicates that BOEM will give reasons for any disapproval of a Construction and Operations Plan and allow the lessee to resubmit without the identified defects.

However, as with the other criteria described above, Section 585.628(f)(2) does not appear to require BOEM to relinquish authority to preclude all activity within the leased area. Though the provision does grant the lessee an opportunity to cure any defects in the Plan, it does not confer any right to engage in the equivalent of surface disturbing activities, which still require approval from BOEM.

19 misrepresents the nature of the lease, which makes no promises other than giving the lessee the

exclusive right to survey the area and submit a proposal. See NYAR-0046754, 0046760.

Indeed, at least part of the purpose of conducting site characterization in the leased area is to

determine whether the site is suitable for the proposed purpose. NYAR-0074262 (“After lease

issuance, a lessee would conduct surveys and, if authorized to do so pursuant to an approved

SAP, install meteorological measurement devices to characterize the site’s environmental and

socioeconomic resources and conditions and to assess the wind resources in the proposed lease

area. A lessee would collect this information to determine whether the site is suitable for

commercial development . . . .”). Against this background, the lease sale does not represent the

final word on anything, nor does it commit any resources, even putting aside the question of

whether it does so irretrievably. 7

7 Plaintiffs also note in passing that several of the cases addressing ripeness in the context of multi- stage leasing programs identified lease issuance as the point when NEPA claims ripen. ECF No. 48 at 10–11 & n.8; see also, e.g., CBD,

(identifying specific lease sales as point of irreversible and irretrievable commitment). But this interpretation is misleading. Wyoming Outdoor Council II—the case upon which more recent cases such as CBD and CSE relied— described lease issuance as the critical stage for ripeness only as part of an explicit application of the Peterson rule. See Wyoming Outdoor Council II,

. As this court has already discussed, the heart of the Peterson rule is the question of whether the agency retains the authority to preclude all surface disturbing activity. Peterson,

; see also Wyoming Outdoor Council v. Bosworth,

, 92–93 (D.D.C. 2003) (noting that Wyoming II “based its irreversible commitment finding on the fact that the agency had chosen not to retain its authority to preclude all surface-disturbing activities after lease issuance,” that the NEPA claim in the case before it was unripe where lease issuance did not involve relinquishment of preclusive authority or resolution of development contingency, and that ripeness is a “flexible” doctrine, not “a per se rule”). In Wyoming II, CBD, and CSE, the agency could not have relinquished its preclusive authority because it had yet to take any specific action under the leasing program. See CBD,

(noting that agency “had only approved the Leasing Program at issue,” and that “[n]o lease-sales had yet occurred”); CSE, 779 F.3d at 599–600 (same); Wyo. Outdoor Council II, 165 F.3d at 49–50 (same). In Peterson and Conner, ripeness turned on lease issuance because the agency relinquished authority by the terms of the leases. Peterson,

(noting that since the “decision to allow surface disturbing activities” was made “at the leasing stage,” NEPA obligations attached at that point) (emphasis in original). But in this case—as in Bosworth—the lease does not relinquish preclusive authority. See

. 20 For these reasons, Plaintiffs’ NEPA claims are not ripe.

C. OCSLA Violations

Plaintiffs allege that Defendants violated OCSLA by (1) failing to properly consider and

provide for fishing, safety, conservation of natural resources, and navigation during both the site

selection and the lease issuance process; and (2) adopting a set of regulations that on their face

exceed the authority granted by OCSLA. ECF No. 39 at 47, 51–52. Statoil responds that (1) the

regulations BOEM adopted were a reasonable interpretation of OCSLA’s congressional

mandate, ECF No. 40 at 17–19; (2) BOEM considered all relevant OCSLA factors at all relevant

stages—through stakeholder meetings and public commentary—before reasonably deciding to

adopt some changes and defer consideration of certain potential risks, ECF No. 40 at 19–22; and

(3) BOEM’s analysis of potential alternatives to development of the wind farm area was

adequate. ECF No. 40 at 22–28. BOEM echoes these contentions and further argues that

Plaintiffs’ OCSLA claims are procedurally barred by their failure to observe the statutorily

mandated sixty-day waiting period. ECF No. 42 at 28. The court agrees that Plaintiffs’ OCSLA

claims are barred for noncompliance with the statute.

OCSLA establishes a private right of action for persons “having a valid legal interest

which is or may be adversely affected” by an agency’s violation of OCSLA or its associated

regulations.

(a)(1). OCSLA also provides that “[e]xcept as provided in

paragraph (3) of this subsection, no action may be commenced . . . prior to sixty days after the

plaintiff has given notice of the alleged violation, in writing, under oath, to the Secretary.”

(a)(2)(A). Compliance with the sixty-day notice period is mandatory, although

Section 1349(a)(3) provides an exception when “the alleged violation constitutes an imminent

threat to the public health or safety or would immediately affect a legal interest of the plaintiff.”

21

§ 1349(a)(3). See Hallstrom v. Tillamook County,

, 23 n.1, 26, 31 (1989)

(holding that nearly identical sixty-day notice provision in Resource Conservation and Recovery

Act represented a mandatory precondition to suit and expressly noting similarity to

(a)(2)); Duke Energy Field Servs. Assets, LLC v. Fed. Energy Regulatory Comm’n,

(D.D.C. 2001) (“[T]he citizen suit provision in the instant [OCSLA] case

plainly bars all cases which do not comply with the provision . . . .”) (emphasis in original).

Thus, unless they face an imminent threat to public health or safety or some immediate effect on

a legal interest, plaintiffs must comply with the sixty-day notice provision. Hornbeck Offshore

Servs., LLC v. Salazar,

(E.D. La. 2010) (citing Duke Energy,

).

Plaintiffs advance two arguments in support of their compliance with OCSLA’s pre-suit

requirements: (1) since the lease auction occurred only forty-five days after the Final Sale Notice

was published, they did not have sixty days to notify Defendants of their claims before the Final

Sale and should therefore be excused from compliance with the sixty-day requirement, ECF No.

48 at 23–24; and (2) their claims fall within Section 1349(a)(3)’s exception because the lease

“immediately affect[s] a legal interest of the plaintiff” insofar as it grants Statoil a property

interest, along with “attendant rights to condition the access of others,” and firmly determines the

boundaries of the wind farm area. ECF No. 48 at 24.

Neither of these arguments is persuasive. The fact that there were fewer than sixty days

between publication of the Final Sale Notice and the lease sale does not excuse Plaintiffs from

compliance with the sixty-day notice period. They have identified no provision of the statute

that requires BOEM to schedule its lease sales to accommodate potential claimants, and the plain

language of Section 1349(a)(1) contains no ambiguity that is susceptible to such an

22 interpretation. Rather, as in Hallstrom, Plaintiffs essentially argue that the statute “should be

given a flexible or pragmatic construction” that would accommodate their view of the equities.

. The court declines to engage in such an exercise. Congress has already

addressed this situation in Section 1349(a)(1), which contains “explicit and unambiguous”

language that “must be given palpable effect.” Duke Energy,

; see also

Hallstrom,

(noting in analogous context that “[g]iving full effect to the words of

the statute preserves the compromise struck by Congress”). Against this background, the court

sees no justification for adopting an interpretation of Section 1349(a)(1) that “flatly contradicts

the language of the statute.” Hallstrom,

.

Moreover, Congress provided for situations in which the rigid sixty-day notice

requirement of Section 1349(a)(1) would create unacceptable hardship by carving out an

exception for exigent circumstances. See

(a)(3). To be eligible for that

exception, a plaintiff must (1) provide notice of the alleged violation, and (2) demonstrate an

imminent threat to public health or safety or that the alleged violation would immediately affect

a plaintiff’s legal interests.

(a)(3). While Plaintiffs in this case provided notice,

and even signaled their intention to invoke the provision in their notice letter, ECF No. 3-1 at

148, they have failed to demonstrate any imminent threat to public health or safety, or any

immediate effect on their legal interests that would authorize their claim under Section

1349(a)(3). As noted earlier, the lease has no immediate effect except to grant Statoil the right to

submit an Site Assessment Plan and, potentially, a Construction and Operations Plan. Nothing

in the lease authorizes Statoil to exclude others from the leased area or condition access to that

area, and to the extent that the lease grants a type of property interest to Statoil, this grant fails to

23 satisfy Section 1349(a)(3), which concerns the effect on a plaintiff’s legal interest. See

(a)(3).

This case therefore differs from those in which the requirements of Section 1349(a)(3)

were met. See Chevron, U.S.A., Inc. v. FERC,

, 64–65 (D.D.C. 2002) (finding

Section 1349(a)(3) satisfied where agency intended to “disclose the plaintiffs’ commercially

sensitive information within five days,” which “would detrimentally affect the plaintiffs’ legal

interest in preserving the confidentiality of the information and in maintaining its suits

[challenging disclosure orders]”); Hornbeck,

n.8 (noting in alternative

that immediate loss of business relationships satisfied requirements of Section 1349(a)(3)).

Here, compliance with the sixty-day notice period would not have caused any immediate injury

or loss of a legal right. Accordingly, Plaintiffs cannot invoke Section 1349(a)(3), and their

OCSLA claims are barred for failure to comply with the terms of Section 1349(a)(1).

IV. CONCLUSION

For the foregoing reasons, the court hereby concludes that Defendants’ Motion for

Summary Judgment will be GRANTED, Plaintiffs’ Motion for Summary Judgment will be

DENIED, and Defendant-Intervenor’s Motion will be DENIED AS MOOT. An appropriate

order accompanies this memorandum opinion.

Date: September 30, 2018 2018.09.30 23:28:44 -04'00'

TANYA S. CHUTKAN United States District Judge

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