Save Long Beach Island v. United States Dep't of the Interior
| Decision Date | 09 March 2023 |
| Docket Number | 22-cv-55 (DLF) |
| Parties | SAVE LONG BEACH ISLAND et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs Save Long Beach Island and its president, Robert Stern, bring this challenge under the Administrative Procedure Act to a U.S. Bureau of Ocean Energy Management (BOEM) memorandum designating certain areas in the New York Bight as “Wind Energy Areas.” Compl., Dkt. 1. Before the Court is the defendants' motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Mot. to Dismiss, Dkt. 14. For the reasons that follow, the Court will grant the motion and dismiss the complaint for lack of jurisdiction.
The Secretary of the Interior is authorized to issue leases on the outer continental shelf of the United States to “produce or support production, transportation, storage, or transmission of energy from sources other than oil and gas.” 43 U.S.C. § 1337(p)(1)(C). BOEM is the “agency within the Department of the Interior” with “primary regulatory authority over offshore renewable energy projects.” Pub. Emps. forEnv'tResp. v. Hopper, 827 F.3d 1077, 1080-81 (D.C. Cir. 2016); see 30 C.F.R. § 585.100 (delegating Secretary's authority to BOEM).
When BOEM has identified a potential area for renewable energy development, agency regulations provide for BOEM first to publish a “Call for Information and Nominations (Call) . . . for leasing in specified areas.” 30 C.F.R. § 585.211(a). Second, after public comment, the agency proceeds to “[a]rea identification,” the stage in which it selects from nominated and other areas certain “areas for environmental analysis and consideration for leasing.” Id. § 585.211(b). Area identification does not, however, by itself grant any lease or permit any development. In the third step, BOEM may, from any part of the identified areas, offer up portions for a competitive lease sale through a Proposed Sale Notice, and in turn a Final Sale Notice. Id. §§ 585.215-216. Finally, after winning a lease, the lessee must still obtain further approvals in order to lawfully begin any construction activities; the lease itself grants the lessee only the right to operate “subject to” obtaining those approvals. Id. § 585.200(a); see also id. § 585.600.
The Administrative Procedure Act (APA) permits judicial review of “final agency action” unless it “is committed to agency discretion by law” or a “statute preclude[s] judicial review.” 5 U.S.C. §§ 701(a), 704. It empowers the Court to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
The National Environmental Policy Act (NEPA) “establishes procedural requirements to ensure that the government gives ‘appropriate consideration' to environmental impacts before undertaking major actions.” Gulf Restoration Network v. Haaland, 47 F.4th 795, 798 (D.C. Cir. 2022) (quoting 42 U.S.C. § 4332(2)(B)-(C)). Among other things, it requires the agency “to take a ‘hard look' at the reasonably foreseeable impacts of a proposed major federal action” and to “consider alternatives to the proposed action.” Id. (cleaned up). The agency must prepare and publish an environmental impact statement to that effect. See 42 U.S.C. § 4332(C); Friends of Cap. Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051, 1055 (D.C. Cir. 2017). The statute is a procedural one, “designed to ensure fully informed and well-considered decision[s] by federal agencies,” and it “does not mandate particular results.” Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1309-10 (D.C. Cir. 2014) (cleaned up).
The Endangered Species Act (ESA) likewise imposes requirements on federal agencies before taking certain actions. See 16 U.S.C. § 1531 et seq. For instance, “[i]f an agency concludes that its action ‘may affect' a listed species or critical habitat, then the agency must pursue either formal or informal consultation with the [National Marine Fisheries Service] or Fish and Wildlife [Service].” Ctr. for Biological Diversity v. Dep't of Interior, 563 F.3d 466, 474-75 (D.C. Cir. 2009) (citing 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.13, 402.14). “If the agency determines that its action will not affect any listed species or critical habitat, however, then it is not required to consult with [National Marine Fisheries] or Fish and Wildlife.” Id. at 475.
The New York Bight is “an offshore area that extends northeast from Cape May in New Jersey to Montauk Point on the eastern tip of Long Island, New York.” Compl. ¶ 39. On April 11, 2018, BOEM published a “Call for Commercial Leasing for Wind [P]ower on the Outer Continental Shelf in the New York Bight,” id. ¶ 41, the first step of an authorization process for potential wind energy development. See 83 Fed.Reg. 15,602 (Apr. 11, 2018). Nearly three years later, on March 26, 2021, BOEM issued the New York Bight Area Identification Memorandum (“Area ID Memorandum”), which “adopted five Wind Energy Areas in the New York Bight, totaling a combined 807,383 acres.” Compl. ¶ 42; see id. Ex. 1, Dkt. 1-6 (copy of Area ID Memorandum).[1] According to BOEM, the New York Bight “contains three elements that are critical for successful offshore wind development-sustainable wind speeds, relatively shallow water depths with buildable substrate and robust regional energy demand.” Area ID Memorandum at 7. The Area ID Memorandum nominated, and the BOEM Director adopted, certain final Wind Energy Areas, which were a subset of those considered by the original Call for Commercial Leasing:
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Area ID Memorandum at 2.
Before adopting the Area ID Memorandum and selecting the Wind Energy Areas enumerated therein, BOEM “did not prepare an environmental impact statement or conduct any kind of NEPA review.” Id. ¶ 45.[2] Rather, the Area ID Memorandum states that “BOEM will conduct an environmental review pursuant to NEPA” “[a]fter the Area ID determination is made, but before a lease sale occurs.” Area ID Memorandum at 5. Such review is limited to “potential impacts from the activities that are reasonably foreseeable as a result of leasing.” Id. Later in the process, before approving a lessee's construction and operations plan, BOEM also conducts “project-specific environmental analysis under NEPA.” Id. Additionally, BOEM designated the Wind Energy Areas “without any consideration of the possible effects the program might have on listed endangered species like the North Atlantic right whale” and “failed to consult with the National Marine Fisheries Service.” Compl. ¶¶ 67, 69.
Plaintiff Save Long Beach Island is a nonprofit New Jersey corporation whose members have a view of the designated areas “from public and private vantage points along the coast of Long Beach Island,” a New Jersey beach area along the southern portion of the New York Bight, “and other locations in New York and New Jersey.” Id. ¶ 4. Save Long Beach Island also asserts its members' interests in recreation in the affected areas, preservation of species in and the cultural heritage of the area, and “the natural beauty” and “unobstructed seascape” of the coastline. Id. The plaintiffs filed this suit on January 10, 2022, bringing two counts under the Administrative Procedure Act. See Compl. Count One alleges that BOEM violated NEPA by failing to conduct an environmental assessment prior to issuing the Area ID Memorandum, id. ¶¶ 50-64, and Count Two alleges that BOEM violated the ESA by failing to consult the National Marine Fisheries Service (NMFS), id. ¶¶ 65-70. In addition to BOEM, the plaintiffs sued the U.S. Department of the Interior (DOI), Secretary of the Interior Deb Haaland, and BOEM Director Amanda Lefton. Id. ¶¶ 6-9.
The U.S. Constitution limits the federal courts to deciding cases or controversies, U.S. Const. art. III, § 2, and it is “presumed that a cause lies outside this limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Attias v. Carefirst, Inc., 865 F.3d 620, 625 (D.C. Cir. 2017). To present a justiciable case or controversy, the party invoking federal jurisdiction must demonstrate standing and ripeness, among other requirements. Kokkonen, 511 U.S. at 377; Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Pub. Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1289 (D.C. Cir. 2007).
“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'” Nat'l Park Hosp Ass'n v. DOI, 538 U.S. 803, 807-08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-149 (1967)). Motions to dismiss on ripeness grounds consistently proceed under Rule 12(b)(1) because “[t]he question of ripeness goes to . . . subject matter jurisdiction.” Exxon Mobil Corp. v. FERC, 501 F.3d 204, 207 (D.C. Cir. 2007) (quoting Duke City Lumber Co. v. Butz, 539 F.2d 220, 221 n.2 (D.C. Cir. 1976)); see also Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005); Beach TV Props., Inc. v. Solomon, 254 F.Supp.3d 118, 131 (D.D.C. 2017); Matthew A. Goldstein, PLLC v. U.S. Dep 't of State, 153...
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