06/22/2020 - Legal Analysis - Oceans & Offshore Energy - Private Sector Project - Student Work

Vineyard Wind is One Step Closer to Construction: Will Anything Else Get in the Way?

by Martin Levy, JD 2020

Block Island Offshore Wind Farm

Block Island Offshore Wind Farm

 

The nation’s first utility-scale offshore wind farm is one step closer to beginning construction. After much ado, the Bureau of Ocean Energy Management (BOEM) published a supplemental environmental impact statement (EIS) for the Vineyard Wind development on June 12, opening up a 45-day public comment period that will last until July 27.[1] BOEM expects to publish its final environmental review in November before determining whether to approve the Vineyard Wind development in December.[2] Construction would then have to begin swiftly, as Vineyard Wind is under contract to deliver power to Massachusetts’ utilities by January 2022;[3] though Vineyard Wind has acknowledged this 2022 deadline is unfeasible[4] and will likely have to be renegotiated.[5]

Despite this progress, a year ago most industry observers thought Vineyard Wind would have begun building turbines by now. In December 2018, BOEM issued a draft EIS for Vineyard Wind’s Construction and Operations Plan (COP).[6] The COP is the last step before construction in the lengthy BOEM wind-leasing process.[7] As of June 2019, Vineyard Wind was set to begin construction that same year.[8] However, in July 2019, BOEM informed Vineyard Wind that it was not yet ready to finalize the EIS.[9] Then, BOEM announced in August 2019 that it would conduct a supplemental environmental review.[10] While BOEM maintains that this additional review was necessary to account for anticipated growth in the offshore wind industry,[11] members of the Massachusetts congressional delegation accused the Trump administration of applying a double standard “in which fossil fuel projects are expediated while renewable energy projects are delayed.”[12]

In the recent draft supplemental EIS, BOEM greatly expanded its consideration of “cumulative impacts” compared to the December 2018 draft EIS.[13] While the 2018 draft EIS considered the impacts of the Vineyard Wind project and all other projects with an approved or submitted COP, the 2020 supplement draft EIS expanded this analysis to account for all announced state solicitations for existing lease areas.[14] This expanded the evaluation from one considering the impact of developing 6.2 gigawatts (GW) of offshore wind energy across 6 projects[15] to one considering the impact of developing 22 GW of offshore wind energy across 2,000 wind turbines built over a 10-year period.[16] At an offshore wind industry conference, acting BOEM Director Walter Cruickshank stated that similarly expansive environmental reviews of “cumulative impacts” will now be part of all future COP approvals.[17] Interestingly, this expansive approach to “cumulative impact” analysis differs significantly from the Trump Administration’s Council of Environmental Quality (CEQ) proposal to eliminate mandatory “cumulative impact” analysis in NEPA reviews.[18]

The Supplemental EIS makes four main findings of major (detrimental) impacts resulting from the Vineyard Wind project or the development of the offshore wind industry. First, BOEM found that the Vineyard Wind project would have major direct impacts on environmental justice communities because cable placements could disrupt the work of low-income workers in the commercial and for-hire recreational fishing industry.[19] Second, BOEM found that the full development of the offshore wind industry could have a major cumulative impact on scientific research and surveys, due to the increased presence of wind turbines.[20] Third, BOEM found that the Vineyard Wind project would have major direct impacts on navigation and that the full development of the offshore wind industry would also have major cumulative impacts on navigation. Essentially, the presence of wind turbines would increase the complexity of navigation and, therefore, would increase the risk of collision and loss of life due to maritime incidents.[21] However, BOEM stipulates that these navigational impacts could be avoided if wind turbines are arranged with both an east-west orientation and a minimum spacing of 1 nautical mile, which would allow vessels to travel unobstructed[22] Fourth, BOEM finds that the cumulative impact of offshore wind development would have a major detrimental impact to the commercial fisheries industries “when combined with ongoing and future impacts as a result of climate change and reduced stock levels as a result of fishing mortality.”[23] BOEM notes that these impacts could be reduced if uniform spacing and layouts across adjacent projects were adopted in the offshore wind industry[24] Yet, BOEM found that even the adoption of the east-west orientation and 1 nautical mile spacing would not avoid major detrimental impacts on commercial fishing.[25]

These findings alone will not prohibit BOEM from approving the Vineyard Wind project. The agency can proceed with actions that have environmental consequences so long as they take a “hard look” at those consequences.[26] In December BOEM must decide whether to approve the project and, if so, whether it will require any modifications.[27] The agency could condition approval upon the adoption of measures to mitigate harms identified in the supplemental review.[28] Such modifications may include changing the distribution of Vineyard Wind’s wind turbine array to, for instance, the 1 nautical mile spacing with east-west orientation preferred by BOEM’s supplemental EIS.

Finally, while NEPA does not bar BOEM from approving the project, the law may still be a source of future delays that would jeopardize its completion. Commercial fisheries have expressed dissatisfaction at each stage of Vineyard Wind’s development and will have the opportunity to further voice complaints during the 45-day comment period.[29] Should BOEM approve the project without (from the perspective of the commercial fishing industry) making sufficient modifications, it would not be surprising for fisheries to sue the agency for acting arbitrarily.[30] Excessive litigation and the resulting delays were key factors in the abandonment of Cape Wind, the last attempt to bring utility-scale offshore wind to the United States.[31] Given Vineyard Wind’s already delayed timeline, similar litigation-related delays could place the project in jeopardy. While it is too soon to predict Vineyard Wind’s ultimate fate, it is safe to say that the next few months will be critical to the project’s future.

For more information about BOEM’s offshore wind permitting process, see our prior post here.

[1] Department of the Interior, Bureau of Ocean Energy Management, Notice of Availability of a Supplement to the Draft Environmental Impact Statement for Vineyard Wind LLC’s Proposed Wind Energy Facility Offshore Massachusetts and Public Meetings, 85 Fed. Reg. 35952 (June 12, 2020) available at https://www.boem.gov/sites/default/files/documents/about-boem/85-FR-35952.pdf.

[2] Bureau of Ocean Energy Management, Vineyard Wind Offshore Wind Facility One Federal Decision Permitting Timeline (Revisions as of February 7, 2020) available at https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Vineyard-Wind-SEIS-Permitting-Timetable.pdf.

[3] Massachusetts Department of Public Utilities D.P.U. 18-76; D.P.U. 18-77; D.P.U. 18-78 (April 12, 2019) (“The first phase of the project (“Phase 1”) has a nameplate capacity of 400 MW and has a commercial operation date (“COD”) of January 15, 2022. The second phase of the project (“Phase 2”) has a nameplate capacity of 400 MW and has a COD of January 15, 2023.) (page 4-5) available at https://fileservice.eea.comacloud.net/FileService.Api/file/FileRoom/10617250.

[4] See Vineyard Wind, Statement on Bureau of Ocean Energy Management Timeline (Feb. 11, 2020) (““We have received updated information from the Department of Interior that indicates the Final Environmental Impact Statement (FEIS) for the Vineyard Wind I project will be published later than what was previously anticipated,” said Lars Pedersen, CEO of Vineyard Wind. “While we need to analyze what a longer permitting timeline will mean for beginning construction, commercial operation in 2022 is no longer expected. We look forward to the clarity that will come with a final EIS so that Vineyard Wind can deliver this project to Massachusetts and kick off the new US offshore energy industry.”) available at https://www.vineyardwind.com/press-releases/2020/2/11/statement-on-boem-timeline.

[5] See Massachusetts Department of Public Utilities D.P.U. 18-76; D.P.U. 18-77; D.P.U. 18-78 (April 12, 2019) (“The Companies also maintain that if either COD is not achieved by the guaranteed dates, Vineyard Wind is subject to delay damages and potential contract termination”) available at https://fileservice.eea.comacloud.net/FileService.Api/file/FileRoom/10617250.

[6] Vineyard Wind Offshore Wind Energy Project Draft Environmental Impact Statement (December 2018) https://www.boem.gov/sites/default/files/renewable-energy-program/State-Activities/MA/Vineyard-Wind/Vineyard_Wind_Draft_EIS.pdf.

[7] See, e.g., Bureau of Ocean Energy Management, The Renewable Energy Process: Leasing to Operations (June 12, 2020) available at  https://www.boem.gov/sites/default/files/documents/renewable-energy/Leasing-Process_0.pdf.

[8] See Vineyard Wind Press Release (June 24, 2019) Project Update: Vineyard Wind Finalizes Turbine Array to Boost Mitigation for Fishermen and Historic Preservation on Nantucket and Vineyard (“As the project continues to move ahead with public and regulatory review through more than 25 federal, state, and local approval processes, Vineyard Wind remains on track to begin construction in 2019.”). available at https://www.vineyardwind.com/press-releases/2019/6/24/project-update-vineyard-wind-finalizes-turbine-array-to-boost-mitigation-for-fishermen-and-historic-preservation-on-nantucket-and-vineyard.

[9] See Vinyeard Wind Press Release (July 10, 2019) Statement on Bureau of Ocean Energy Management Environmental Impact Statement available at https://www.vineyardwind.com/press-releases/2019/7/10/statement-on-bureau-of-ocean-energy-management-environmental-impact-statement.

[10] See Vineyard Wind Press Release (August 12, 2019) Shareholders Affirm Commitment to Deliver Offshore Wind Farm but with Revised Schedule (“Vineyard Wind today announced that company shareholders have affirmed a commitment to deliver a proposed 800-megawatt (MW) wind farm off the coast of Massachusetts, albeit with a delayed project schedule. This decision follows the August 9th determination by the United States Department of the Interior (DOI) to significantly delay publication of the Vineyard Wind 1 project’s Final Environmental Impact Statement (FEIS) and to instead undertake a supplemental draft Environmental Impact Statement process.”) available at https://www.vineyardwind.com/press-releases/2019/8/12/shareholders-affirm-commitment-to-deliver-offshore-wind-farm-but-with-revised-schedule-1.

[11] Id. (“In public statements, the United States Bureau of Ocean Energy Management (BOEM) has indicated the supplemental process is needed to examine the effects from the many offshore wind projects that are expected to follow development of the Vineyard Wind project.”)

[12] Letter to Gene L. Dodaro, Comptroller General, U.S. Government Accountability Office from Members of the Massachusetts Delegation (February 5, 2020) available at https://www.warren.senate.gov/imo/media/doc/2020.02.05%20Letter%20to%20GAO%20re%20Letter%20to%20GAO%20re%20wind%20energy%20fossil%20fuel.pdf.

[13] Council of Environmental Quality regulations define “Cumulative impact” as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 CFR § 1508.7 – Cumulative impact.

[14] See Bureau of Ocean Energy Management, Vineyard Wind 1 Offshore Wind Energy Project, Supplement to the Draft Environmental Impact Statement, 1.2.1. Overview of the Cumulative Scope for Offshore Wind Activities (June 2020)

[15] These projects are Vineyard Wind 1 (proposed Project, 800 MW) and all projects with COPs approved or submitted (in addition to the proposed project), which includes South Fork Wind, BayState Wind, Skipjack Wind, Ocean Wind, Coastal Virginia Offshore Wind (CVOW), and Empire Wind) (5.4 GW). Id.

[16] See Bureau of Ocean Energy Management, Vineyard Wind 1 Offshore Wind Energy Project, Supplement to the Draft Environmental Impact Statement, ES3. Environmental and Cumulative Impacts, ES-2 (June 2020) (“This scope for future offshore wind development is greatly expanded from what was considered in the Draft EIS, which only considered in detail projects that had submitted construction plans (approximately 130 MW) in federal waters at that time). The level of development expected to fulfill 22 gigawatts of offshore wind energy would result in the construction of about 2,000 wind turbines over a 10-year period on the Atlantic OCS, with currently available technology.”).

[17] Heather Richards, Interior seeks input after finding turbines hurt fisheries, E&E News (June 11, 2020) (“BOEM acting chief Walter Cruickshank reiterated during an offshore wind panel yesterday his stance that the federal government intended for Vineyard permitting to be exemplary to set a standard for the burgeoning industry to come. Cumulative impact studies will now be part of all offshore construction and operation plan environmental reviews, he said during the Business Network for Offshore Wind’s 2020 International Partnering Forum.”) available at https://www.eenews.net/stories/1063371249.

[18] Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act *5 Fed. Reg. 1708 (Jan. 10, 2020) (“In addition, CEQ proposes a change in position to state that analysis of cumulative effects, as defined in CEQ’s current regulations, is not required under NEPA . . . Excessively lengthy documentation that does not focus on the most meaningful issues for the decision maker’s consideration can lead to encyclopedic documents that include information that is irrelevant or inconsequential to the decision-making process.”) available at https://www.federalregister.gov/documents/2020/01/10/2019-28106/update-to-the-regulations-implementing-the-procedural-provisions-of-the-national-environmental.

[19] See Bureau of Ocean Energy Management, Vineyard Wind 1 Offshore Wind Energy Project, Supplement to the Draft Environmental Impact Statement, 3.8.2.1. Cumulative Impacts of the Proposed Action, page 3-68, (June 2020) (“Selection of the New Hampshire Avenue landfall site could have a major, disproportionate impact on low-income residents in the commercial and for-hire recreational fishing industry near Lewis Bay due to the construction of the OECC cable through Lewis Bay, temporarily disrupting navigation in the heavily travelled area. The impact would be reduced to moderate by mitigation that avoids impacts on and does not prevent future dredging of the navigation channel.)

[20] See id. at 3.14.2.1. Cumulative Impacts of the Proposed Action, 3-126-127 (“Randomized station selection methodologies that are employed by most of the shipboard scientific fish and shellfish surveys would not be able to be applied in wind energy areas. Loss of survey areas would increase the uncertainty in estimates of fish and shellfish stock abundances and of oceanographic parameters . . . The Vineyard Wind lease area alone overlaps strata associated with three different coast-wide Northeast Fisheries Science Center fishery resource monitoring surveys. For the spring and fall multi-species bottom trawl surveys, 6 percent of the area in one stratum would be within the Vineyard Wind lease area. For the ocean quahog survey, 3 percent of the area in one stratum would be within the lease area. As a result, the Proposed Action would result in major impacts on NOAA’s scientific surveys. The effects of other offshore wind projects would be similar, over an extended area”)

[21] See id. at 3.13.2.1. Cumulative Impacts of the Proposed Action, 3-113 (June 2020) (“The main IPF is the presence of structures, which increase the risk of collision/allusion and navigational complexity. Considering all the IPFs together, BOEM anticipates the overall cumulative impacts on navigation and vessel traffic would be major, due primarily to the increased loss of life due to maritime incidents, which would produce significant local and possibly regional disruptions for ocean users in the RI and MA Lease Areas.”).

[22] See Id. at 3.13.2.3. Cumulative Impacts of Alternative D2, 3-115 (“Alternative D2 would result in 1 x 1 nautical mile spacing between WTGs, with WTGs arranged in east–to–west rows and north-to-south columns, matching the orientation that BOEM assumes for all other future offshore wind projects . . . The cumulative impacts resulting from individual IPFs associated with Alternative D2 on navigation and vessel traffic, when combined with past, present, and reasonably foreseeable activities, would be negligible to moderate. This is mainly due to the coordination of the Alternative D2 WTG layout with layouts of adjacent future offshore wind projects, as well as improved USCG SAR response, compared to the Proposed Action and other alternatives.”)

[23] See Bureau of Ocean Energy Management, Vineyard Wind 1 Offshore Wind Energy Project, Supplement to the Draft Environmental Impact Statement, 3.8.2.1. Cumulative Impacts of the Proposed Action, page 3-68, (June 2020)

[24] See Bureau of Ocean Energy Management, Vineyard Wind 1 Offshore Wind Energy Project, Supplement to the Draft Environmental Impact Statement, 3.11.2.1. Cumulative Impacts of the Proposed Action, page 3-99, (June 2020)

[25] Id. at 3-105 (“The overall cumulative impacts of any alternative when combined with past, present, and reasonably foreseeable activities on commercial fisheries and for-hire recreational fishing would be major.”)

[26] See Baltimore Gas and Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (1983) (Congress, however, did not require agencies to elevate environmental concerns over other appropriate considerations. Rather, it only required that the agency take a “hard look” at the environmental consequences before taking a major action.)

[27] See 30 CFR§ 585.628(f) How will BOEM process my COP? (“Upon completion of our technical and environmental reviews and other reviews required by Federal law (e.g., CZMA), BOEM may approve, disapprove, or approve with modifications your COP.”); see also 30 CFR § 585.633 – How do I comply with my COP? (“(a) Based on BOEM’s environmental and technical reviews, we will specify terms and conditions to be incorporated into your COP.”)

[28] Id.

[29] See Gavin Bade, BOEM report points to strict conditions for Atlantic offshore wind projects, Politico (June 11, 2020) (Commercial fishing interests, which have opposed offshore wind development, praised the new study. The Responsible Offshore Development Alliance, a fishing group, thanked BOEM for “considering additional alternatives that would provide much-needed safe transit options for fishermen,” and the report’s finding that offshore wind will have “major cumulative fisheries impacts.” RODA, however, still wants BOEM to go beyond issuing conditions and instead consider abandoning the project completely. “[We] remain gravely concerned about the effects to the region’s sustainable seafood production if the proposed action is approved,” Hawkins said. “The question is whether the mitigation efforts are going to be adequate or not. And they’re not from a fisheries perspective.”) available at https://www.politico.com/news/2020/06/11/boem-report-points-to-strict-conditions-for-atlantic-offshore-wind-projects-314326.

[30] One could imagine a suit against BOEM for not sufficiently considering the impacts on fisheries or on the environment as stipulated in the authorizing statute. See 43 U.S.C. § 1337(p)(4) (“The Secretary shall ensure that any activity under this subsection is carried out in a manner that provides for . . . protection of the environment . . . consideration of . . . any other use of the sea or seabed, including use for a fishery . . .”). Commercial fisheries have previously made such claims against. BOEM see Fisheries Survival Fund v. Jewell, 2018 WL 4705795, at *10 (D.D.C. Sept. 30, 2018)(“ 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.”). The National Ocean Industries Association has raised concerns that fisheries would act similarly here. See Colin A. Young, In latest setback, offshore wind launch pushed beyond 2022: But Baker administration officials remain optimistic, South Coast Today (Feb. 11, 2020) (“the National Ocean Industries Association called the updated timeline “disappointing.” “Regulatory delays — especially of a new industry — could open the door to unexpected and unintended bottlenecks and holdups. However, the complexity of what Interior is doing should not be forgotten. It is critically important that Interior issue a robust Final Environmental Impact Statement (FEIS) that can withstand the automatic litigation that could be filed in an attempt to block the ascendant offshore wind industry,” association president Erik Milito said. “The Vineyard Wind project is a win for the American people, the energy industry and the environment. We are optimistic that the expanded timeline for the project will ultimately clear the way for a robust U.S. offshore wind industry.”) available at https://www.southcoasttoday.com/news/20200211/in-latest-setback-offshore-wind-launch-pushed-beyond-2022-but-baker-administration-officials-remain-optimistic.

[31] See Katharine Q. Seelye, After 16 Years, Hopes for Cape Cod Wind Farm Float Away, New York Times (Dec. 19, 2017) ( “. . . after 16 years — and $100 million of his own money — that dream is, well, gone with the wind. Mr. Gordon has pulled the plug, stymied by endless litigation and a series of financial and political setbacks that undermined Cape Wind’s viability.”) available at https://www.nytimes.com/2017/12/19/us/offshore-cape-wind-farm.html; see also, e.g., Town of Barnstable v. O’Connor, 786 F.3d 130 (1st Cir. May 18, 2015); Ten Taxpayer Citizens Group v. Cape Wind Association, LLC, 373 F.3d 183 (1st Cir. Jun. 28, 2004); Alliance to Protect Nantucket Sound, Inc. V. United States Dept’ of the Army, 398 F.3d 105 (1st. Cir. Feb. 16, 2005); Town of Barnstable v. FAA, 740 F.3d 681 (D.C. Cir. Jan. 22, 2014)