Kinsella v. Bureau of Ocean Energy Management

The D.C. Circuit Court of Appeals dismissed an appeal of an order granting defendants’ motion to transfer—to the Eastern District of New York—a case challenging the Bureau of Ocean Energy Management’s approval of the South Fork offshore wind energy project. The D.C. Circuit ruled that the order was not appealable because the plaintiff did not show that the order had the “practical effect” of denying a request for injunctive relief or that it might have a “serious, perhaps irreparable consequence” that could only be addressed by an immediate appeal. The D.C. Circuit also denied the project developer’s motion to strike addenda filed by the plaintiff and a motion by the plaintiff to remove counsel representing the project developer.

The federal district court for the District of Columbia granted a motion to transfer a case challenging the Bureau of Ocean Energy Management’s (BOEM’s) approval of the South Fork offshore wind energy project to the Eastern District of New York. The plaintiff claims that BOEM failed to consider adverse environmental impacts, including drinking water impacts of construction and impacts on the Atlantic cod population. The plaintiff also alleges that BOEM found that the project would help New York meet the mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA) but that BOEM did not take into account that the project allegedly did not comply with the CLCPA’s requirements to minimize costs and to reduce negative impacts on disadvantaged communities. The plaintiff also asserted Coastal Zone Management Act, Outer Continental Shelf Lands Act, Administrative Procedure Act, Freedom of Information Act, and due process claims, as well as a claim of violation of Executive Order 12898, which addressed environmental justice. The district court in the District of Columbia found that public interest factors weighed strongly in favor of transferring the case and outweighed the plaintiff’s preference that venue be in the District of Columbia.