Good morning, it’s Tuesday, May 25, 2021. On this date in 1787, 55 delegates met in Philadelphia to draft a Constitution to replace the unwieldy Articles of Confederation. Did those delegates, all of whom were white and male, do their best? That’s a fraught question.
It’s a matter of record that they were literally revolutionaries who had risked their lives, fortunes, and their family’s future for the idea of self-determination.
Even so, they also seem obtuse today: A new country devoted to independence that granted neither freedom nor equality to a majority of its citizens? That’s also a historic fact. Yet, these imperfect men produced a set of founding documents that created a framework for progress and for future generations to be liberated from the confines of late 18
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On May 20, 2021, the D.C. Circuit affirmed a U.S. District Court ruling dismissing an appeal brought by the Fisheries Survival Fund, Garden State Seafood Association and seaside municipalities (“Appellants”) challenging the Bureau of Ocean Energy Management’s (“BOEM”) decision to issue an offshore lease for a wind energy facility off the coast of New York. Although the dismissal was purely on procedural grounds, in this case those procedures represent the very framework of BOEM’s offshore wind leasing process. Thus, the dismissal represents an important validation of the BOEM process, providing certainty to future lease applicants while insulating holders of already-issued leases against similar procedure-based challenges that might have been brought against other projects.
The Fisheries Survival Fund is disappointed in the decision issued today by the United States Court of Appeals for the District of Columbia. However, we will continue to work with the Bureau of Ocean Energy Management (BOEM) and all federal, state, and local government agencies, as well as wind energy farm developers, to ensure that these new uses of our coastal waters are created in such a way that they do not devastate existing uses, which in this case is one of the most important scallop grounds on the East Coast.
The court ruled that because BOEM doesn’t technically commit to anything at the lease stage, it is too early to challenge the siting of the wind farm under the National Environmental Policy Act (NEPA). The decision means that affected parties cannot challenge a lease location under NEPA until BOEM approves a Construction and Operations Plan (COP) for the wind farm. However, that is very late in the process, and changing the lease location at such a late date would be