Despite a recent unanimous decision by the US Supreme Court regarding NEPA, the Biden Admin’s fast-tracking of offshore wind farms could collide with a larger legal problem that might void agreements, especially those that have not yet begun construction.
We’ve done a ton of reporting on the Gulf of Maine and efforts to ruin this fragile ecosystem (their words, not mine) with an offshore wind farm. When Trump took office, all existing contracts and projects were put on hold pending a review. Trump is no fan of offshore wind, so slow-walking it while his administration reviewed the contracts and process accomplished his goals. No offshore wind, wherever possible, and tie up projects in process in hopes that the vendors and contractors walk away.
There is ample evidence to justify this, such that true animal rights and environmental activists are likely to applaud this move. The environmental impact is significant and was summarily ignored.
“The law remains clear: the Department of the Interior must ensure that offshore projects prevent unreasonable interference before approval — not simply allow harm and hope payouts will quiet objections.”
With offshore wind, a lethal tort issue lurks beneath the waves: Is it enough to pay off harmed ocean users after the fact, or does the law demand the government prevent harm in the first place? Under the Outer Continental Shelf Lands Act (OCSLA), a clear answer is being dangerously overlooked.
Biden-era activists in the government attempted to circumvent this by allowing developers to establish compensation funds for fishermen. Aside from an admission that their work was going to create harm and hardship, procedural hijinks cannot bypass or override the Outer Continental Shelf Lands Act (OCSLA).
OCSLA demands prevention when interference crosses the threshold of unreasonableness.
If they know harm is imminent, the government is legally obligated to prevent the damage.
While OCSLA Section 302 (43 U.S.C. § 1846) provides a statutory process to compensate fishermen for physical gear losses caused by oil and gas activities, there is no similar federal law covering lost revenue or displacement from offshore wind. Payments for lost income or access are voluntary, not legally required, and they do not fulfill the government’s statutory obligation under OCSLA § 8(p)(4)(I).
You can’t just buy them off. You have to mitigate or prevent harm.
If harm is inevitable, the Gulf of Maine Offshore Wind Project cannot proceed.
At least that’s how I read this, and I hope someone’s lawyers view it the same way. Get involved in the review process (if possible), and you may be able to save the Gulf of Maine from this project.
