Fed. Dist. Court in NY Denies Preliminary Injunction to Halt Offshore Wind Farm Project

This post was authored by Amy Lavine, Esq.

In Kinsella v. Bureau of Ocean Energy Mgmt., the District Court for the Eastern District of New York dismissed an action seeking a preliminary injunction to halt ongoing construction of the South Fork Wind Farm and South Fork Export Cable Project. The project involves the construction of a wind farm about 35 miles offshore from Montauk Point, Long Island, and it also requires the construction of underground transmission cables between the wind farm and the onshore electric grid.

The pro se plaintiff, Simon Kinsella, claimed that the Bureau of Ocean Energy Management’s approval of the project violated the Administrative Procedure Act because the agency failed to adequately consider the project’s potential harm to the area’s drinking water and to the Atlantic cod population near the offshore portion of the project, as well as the project’s negative economic impacts on the community. Kinsella also claimed that the project’s procurement process was unlawful and that the  that Bureau of Ocean Energy Management violated the Fourteenth Amendment Due Process Clause and various federal environmental laws, including the National Environmental Policy Act, the Outer Continental Shelf Lands Act, the Coastal Zone Management Act, and Executive Order 12898.

Initially, Kinsella moved for a temporary restraining order in the District Court for the District of Columbia, but his case was transferred to the District Court for the Eastern District of New York based on the location of the project and because there was already another similar case pending in the Eastern District of New York, Mahoney v. U.S. Dep’t of the Interior, 2022 U.S. Dist. LEXIS 67532, 2022 WL 1093199 (EDNY 2022). While there were some differences between the two cases, the court remarked that “Kinsella’s challenge to the Project is largely the same as that brought by the Mahoney plaintiffs…. the bulk of the harm claimed by Kinsella is largely the same as that claimed by the Mahoney plaintiffs, with the additions of the allegations of harm to the offshore cod population and the potential economic harm caused by the Project.” The court also emphasized that the project had been approved by multiple federal and state agencies over the course of an extensive public review process, with “myriad opportunities for input from other agencies and stakeholders,” and that two additional legal challenges had been filed and dismissed in state court actions. Kinsella, in other words, was seeking “relief from this Court that he and his neighbors have repeatedly sought and failed to obtain.”

As with the other challenges brought by project opponents that ultimately failed, the court found that Kinsella failed to establish a sufficient likelihood of irreparable harm to support his claim for a preliminary injunction. First, the court found that Kinsella failed to show that any irreparable harm would result from the project’s cable trenches running through areas with contaminated groundwater. The Mahoney plaintiffs made similar claims that the trenches would disrupt PFAS in the soil and exacerbate the levels of contamination in the groundwater, but those claims were ultimately rejected and the court found that “the same reasoning that the Court applied in denying the Mahoney plaintiffs’ request for a preliminary injunction applies here.” Moreover, as the court pointed out, the state agencies involved in the project were responsible for issuing approvals for the onshore portion of the project, not the Bureau of Ocean Energy Management, so even if Kinsella’s injunction was granted it would not halt construction of the trenches or cable lines. Next, the court disagreed with Kinsella’s claim that seafloor construction for the offshore portion of the project would cause irreparable harm to the cod population or that it would drive up the cost of cod for consumers. “Not only is this argument speculative,” the court explained, “but it points to a financial harm generally outside the purview of injunctive relief.” Finally, the court concluded its opinion by noting that “Kinsella waited until several bites at the apple were taken in various judicial and administrative forums, with significant passage of time, before filing this action. This time lapse ‘undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury.'”

Kinsella v. Bureau of Ocean Energy Mgmt., 2023 WL 3571300 (EDNY 5/18/23).