The construction of an offshore wind farm off the coasts of New York and New Jersey has cleared a legal hurdle. A federal judge has denied a motion to halt further work on the project, despite arguments that government approvals violated the Marine Mammal Protection Act. The case, *Save Long Beach Island, Inc., et al. v. United States Department of Commerce, et al.*, centered on concerns about the impact of the wind farm on marine mammals, particularly dolphins.
Background of the Case
The Bureau of Ocean Energy Management (BOEM) approved the construction of the Empire Wind farm in early 2017. The project, spanning nearly 80,000 acres, is designed to generate a substantial amount of electricity. Construction is divided into two phases.
Before construction began, Empire Wind secured various federal and state permits. A key authorization came from the National Marine Fisheries Service (NMFS), which granted a five-year Letter of Authorization allowing for the “taking” of marine mammals incidental to construction. Under the Marine Mammal Protection Act, “taking” includes actions that harass, hunt, capture, or kill marine mammals. The Act allows for such taking if it has a negligible impact on the species and doesn’t affect their availability for subsistence use.
The Letter of Authorization permits “Level B harassment” of up to 31.9 percent of the Northern Migratory Coastal Bottlenose Dolphin population. Level B harassment involves actions that could disrupt the normal behavioral patterns of marine mammals. The authorization includes mitigation measures, such as seasonal moratoriums on pile driving, the use of observers and sound attenuation devices, and shutdown protocols if marine mammals are spotted nearby.
Construction of Empire Wind 1 has been underway for over a year, with in-water cable installation and monopile foundation building already in progress.
Plaintiffs’ Arguments
The plaintiffs, including Save Long Beach Island, Inc., argued that the government’s approval of the wind farm violated the Marine Mammal Protection Act. They contended that allowing the “taking” of marine mammals, particularly the Level B harassment of dolphins, exceeded the law’s allowance for “small numbers.” They sought a stay of the Letter of Authorization and the Construction and Operations Plan or, alternatively, a preliminary injunction to halt construction.
The Court’s Analysis
The court addressed whether the legal standard for a stay under the Administrative Procedure Act (APA) was the same as the standard for a preliminary injunction. The court determined that the same four-factor framework, established in *Winter v. Natural Resources Defense Council, Inc.*, applied. This framework requires plaintiffs to show they are likely to succeed on the merits, that they will suffer irreparable harm without the injunction, that the balance of equities tips in their favor, and that an injunction is in the public interest.
The court focused heavily on the requirement of “irreparable harm,” which it described as a “high” standard. It noted that the injury must be “certain and great” and “beyond remediation.” The court found that the plaintiffs failed to meet this standard.
The court pointed out that the plaintiffs seemed to conflate the injury needed for standing with the higher standard required for a stay or injunction. The plaintiffs’ argument centered on the impact on Captain Shinn’s whale and dolphin-watching business and Dr. Stern’s aesthetic enjoyment. The court found these arguments unconvincing.
The court noted that the Letter of Authorization only permitted Level B harassment, not Level A harassment (which has the potential to injure marine mammals). The court said the plaintiffs failed to demonstrate how construction would lead to “dead … dolphins.” The court also found it unclear whether any potential disruption of the dolphins’ movement patterns was “great” enough to constitute irreparable harm.
The court also found that the plaintiffs had not proven that the construction was actively harming dolphins. The court cited the mitigation efforts in place, which the NMFS had deemed sufficient to prevent serious injury or mortality.
The court also considered the long delay between the approval of the Letter of Authorization, the start of construction, and the plaintiffs’ motion for a stay or injunction. The court stated that the delay implied a lack of urgency and irreparable harm.
The court then addressed the balance of equities and the public interest, noting that even if the plaintiffs had established irreparable harm, those factors would weigh against them. Halting construction would cause substantial costs and potential project cancellation. The court cited the financial investments already made by Empire Wind, the potential for job losses, and the loss of a clean energy source. The court concluded that the harm to the defendants and the public interest outweighed the plaintiffs’ concerns.
The Decision
Ultimately, the court denied the plaintiffs’ motion for a stay or preliminary injunction. The court found that the plaintiffs failed to establish irreparable harm and that the balance of equities and the public interest did not favor granting the requested relief. The court’s decision allows construction of the offshore wind farm to continue.