Consideration of Alternative Ocean Areas in Siting Offshore Wind Projects:

Philip E. Karmel and J. Kevin Healy BRYAN CAVE LLP 1290 Avenue of the Americas, New York, New York 10104E: pekarmel@bryancave.com

BOEM Leasing Process

NEPA Compliance

Call for Information and Nomination of Leasing Areas30 C.F.R. § 585.211(a)

Public Comment

BOEM Area Identification forEnvironmental Analysis and Consideration for Leasing30 C.F.R. § 585.211(b)

Proposed Sale Notice30 C.F.R. § 585.211(c)

Final Sale Notice30 C.F.R. § 585.211(d)

Competitive Leasing Auction30 C.F.R. § 585.220

Lease30 C.F.R. § 585.224

Site Assessment Plan30 C.F.R. §§ 585.605-.618

Site Assessment30 C.F.R. §§ 585.614-.618

Draft Construction and Operations Plan30 C.F.R. § 585.620-.628

Approve Construction and Operations Plan

Draft Environmental Assessment; Limited to Assessment of Impacts of Lease and Site Characterization Surveys and Assessment Activities – Does Not Consider Impacts of Construction or Operation of Wind Farm40 C.F.R. § 1501.3

Final Environmental Assessmentand Issuance of FONSI (Finding of No Significant Impact) for Lease and Site Characterization Surveys and Assessment Activities40 C.F.R. § 1508.13

Draft Environmental Impact Statement, Consideration of Alternatives and Mitigation40 C.F.R. Part 1502

Final Environmental Impact Statement and Record of Decision40 C.F.R. Parts 1502, 1505

Lessee Constructs and Operates Wind Farm

LEGAL PRINCIPLESAn EIS prepared under NEPA

requires a “hard look” at the

environmental impacts of the

proposed action and consider-

ation of reasonable alterna-

tives. 42 U.S.C. § 4332(2)(C)(iii). A different provision requires study of “appropriate alterna-tives to… any proposal which in-volves unresolved conflicts con-cerning alternative uses of avail-able resources.” 42 U.S.C. § 4332(2)(E).

The goals of an action define

the scope of reasonable alter-

natives. Court decisions give varying weight as to whether the goals are the general goals of the agency (e.g., encouraging off-shore wind farms) or the goals of a particular applicant (e.g., the objective of a lessee of a wind energy area to build a wind farm in that area).

NEPA Allows for Tiering of En-

vironmental Reviews. BOEM’s predecessor (MMS) prepared a Programmatic EIS for Alternative Energy Development and Produc-tion and Alternate Use of Facili-ties on the Outer Continental Shelf in 2007 to support the promulgation of BOEM’s leasing regulations, but it did not dis-place site-specific environmen-tal reviews.

Judicial review of the EIS is

deferential to the lead agency,

but NEPA challenges often

succeed nonetheless, creating

uncertainty. An appellate court recently vacated an EIS for an offshore wind farm on the ground that the three geological surveys performed for the area were insufficient to determine whether its sea bed is able to support large structures and whether important archeological and prehistoric features can be protected. Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077, 1082-83 (D.C. Cir. 2016).

SCALLOP FISHERIES LITIGATIONThe scallop industry alleges that BOEM must consider potential fish-eries impacts under NEPA and al-ternative wind farm locations before leasing a wind energy area for site assessment activities. Fish-eries Survival Fund v. Zinke, 1:16-cv-02409 (U.S. Dist. Ct. D.C.).

A critical issue in the case is likely to be whether the agency has “irre-versibly and irretrievably” commit-ted itself to a pre-ordained course of action before completing the en-vironmental analysis. Predetermi-nation is difficult (or often impossi-ble) to prove where the agency has kept its options open.

Rejection of the scallop industry’s argument would not itself resolve issue of how BOEM should consider alternative wind farm locations in the EIS for the project’s Construc-tion and Operations Plan.

NEW YORK’S UNIQUE APPROACH TO AVOIDING OR MINIMIZINGRESOURCE CONFLICTSSupport for Off-Shore Wind. In the 2017 State of the State, Governor Andrew M. Cuomo proposed to de-velop up to 2.4 gigawatts (GW) of offshore wind by 2030.

The New York State Offshore Wind

Master Plan, which is being devel-oped by NYSERDA based on an extensive data collection effort, is expected to propose offshore wind development sites, provide guide-lines for private developers and rec-ommend economic mechanisms to encourage the construction of wind farms. The guidelines are being developed with input from signifi-cant stakeholders.

BOEM’s site selection process in New York could be improved by integration of the New York State Master Plan into its own deci-sion-making on site selection.

The New York State Offshore Wind Master Plan Offers An Opportunity To Improve The Process

Public Comment

Public Comment

&

NYS Master Plan Study Area