This post was authored by Alice Douglas, with contributions from Summer Associate Reilly Wright 

On July 5, 2023, the United States Department of the Interior’s Bureau of Ocean Energy Management (BOEM) approved the largest offshore wind energy project to date—known as Ocean Wind 1—which will entail the construction of up to 98 wind turbines and up to 3 offshore substations off the coast of New Jersey over the next two years.  Ocean Wind 1, financed by the Danish company Orsted, is the third offshore wind energy project to gain approval by the Biden administration, following the Vineyard Wind project off the coast of Massachusetts and the South Fork Wind project off the coast of Rhode Island and New York, which are both currently under construction.

While supporters of the alternative energy movement have highlighted the potential for these projects to combat climate change while stimulating the economy, these projects have also drawn their fair share of controversy, including litigation in state and federal courts.  On May 17, 2023, for example, two different federal district courts issued decisions in cases involving neighboring residents’ challenges to large-scale wind energy projects in Massachusetts and Kansas respectively, one involving challenges to the federal government’s issuance of permits, and the other involving statutory and common law claims against the project developer.

The first, Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, 1:21-CV-11390-IT, 2023 WL 3510955 (D. Mass. May 17, 2023) involves the aforementioned Vineyard Wind project.  Essentially, plaintiffs argued that BOEM’s decision to approve the project violated the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA) because defendants did not adequately consider the impacts of the project, particularly with respect to endangered North Atlantic right whales. 

Defendants filed a motion for summary judgment, arguing that plaintiffs lacked Article III standing in federal court to bring each of their claims, and that even if plaintiffs had standing, plaintiffs’ claims were waived due to their failure to provide adequate notice of their claims to the defendants in the 60-day letter required under the citizen suit provision of the ESA. 

Article III standing consists of three elements: an (i) injury in fact (ii) that is fairly traceable to the challenged conduct of the defendant, and (iii) that is likely to be redressed by a favorable judicial decision.  In Nantucket Residents Against Turbines, the Court concluded that plaintiffs had standing to pursue their ESA and NEPA claims as to the right whales, because they alleged concrete plans to observe right whales in the waters around Nantucket in the future, which was a sufficiently concrete and particularized legally protected interest to establish an injury-in-fact.  However, the Court determined that plaintiffs’ NEPA claims as to alleged air quality impacts of the project were merely generalized concerns regarding harm to the environment which are insufficient on their own to confer standing. 

As to defendants’ waiver argument, the Court concluded that certain of plaintiffs’ claims under the ESA had been waived because their 60-day letter was too generalized to provide defendants notice of the purported violations, but that others of the plaintiffs’ claims provided defendants with sufficient information and could proceed. 

Finally, turning to the substance of plaintiffs’ surviving allegations, the Court evaluated whether defendants’ actions, which are presumed valid and are entitled to deference under federal law, were arbitrary and capricious under the APA.  The Court’s review was narrow and limited, consistent with federal judicial review under the APA.

The Court concluded that defendants had considered all of the relevant evidence before them, and that plaintiffs’ remaining arguments amounted to a disagreement with how the relevant studies should be interpreted, which is insufficient to make out a claim under NEPA, the ESA, and APA as a matter of law.  Accordingly, the Court granted defendants’ summary judgment motion and dismissed plaintiffs’ complaint in its entirety.  Plaintiffs have since appealed that decision.

In the second case, Stallbaumer v. NextEra Energy Res., LLC, 22-CV-04031-HLT-ADM, 2023 WL 3496245 (D. Kan. May 17, 2023), the plaintiff, a property owner in Nemaha County, Kansas alleged that the defendants’ construction of a commercial wind farm near his property amounted to a nuisance, a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and a civil conspiracy.  The plaintiff also attempted to raise class claims on behalf of “property owners or residents who have suffered harm or damages for which defendants are liable.”

Defendants filed a motion for summary judgment arguing that the wind farm did not constitute a nuisance, and that even if it did, two of the defendants could not be held responsible as a matter of law because they did not own or operate the wind farm property.  Further, defendants argued that as affiliated corporate entities, they could not conspire with one another within the meaning of RICO or the state civil conspiracy statute and that plaintiff’s class claims attempted to create an impermissible “fail-safe” class, in which class membership turns on the merits of the individual class members' claims.

The Court agreed with defendants and granted summary judgment as to each of their arguments, with the limited exception of plaintiffs’ nuisance claim against the defendant that owned and operated the wind farm property.  With respect to that claim, the Court found that plaintiff had raised a genuine issue of material fact as to whether the operation of the wind farm caused an unreasonable interference with his use and enjoyment of his land, allowing the plaintiff to continue to litigate that claim. 

The decisions in Nantucket Residents Against Turbines and Stallbaumer demonstrate the variety of claims that can be brought to challenge the development of alternative energy projects and the different standards that are applied depending on whether the challenged conduct arises from government or private action.  Given President Biden’s ambitious goal of producing 30 giga-watts of offshore wind power in the United States by 2030, additional projects aimed at achieving this goal will likely meet litigation challenges during the siting, planning, and construction phases of the projects.

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