Mayor & City Council of Ocean City v. U.S. Department of the Interior

In a challenge to federal approvals for the Construction and Operations Plan for the Maryland Offshore Wind Project, the federal district court for the District of Maryland held that at least one plaintiff had standing for each of the claims but granted the defendants’ and intervenor defendant’s motion to dismiss several claims. The plaintiffs included local governments in Maryland and Delaware, entities representing fishing and non-fishing business interests, community and business associations, public advocacy groups, and individual residents of the area. The court found that the plaintiffs did not make any “particularized factual allegations” that the Bureau of Ocean Energy Management (BOEM) acted in an arbitrary or capricious manner in violation of the Administrative Procedure Act. It further found that the plaintiffs did not state a claim under the Coastal Zone Management Act (CZMA) because Maryland and Delaware had found the project was consistent with their coastal management programs and the CZMA did not give BOEM authority to contravene those assessments. The court also dismissed the claim under the Migratory Bird Treaty Act, finding no allegation of intentional “taking” of protected bird species by the federal defendants. However, the court allowed a Marine Mammal Protection Act claim to proceed, finding that plaintiffs had plausibly alleged an unlawful incidental taking of the North Atlantic Right Whale, and also allowed an Endangered Species Act claim to proceed. It also found that government plaintiffs stated a claim under the National Historic Preservation Act. The court reserved judgment on the plaintiffs’ claims under the Outer Continental Shelf Lands Act and the National Environmental Policy Act regarding cumulative impact assessments, holding that these issues were more appropriately addressed at the summary judgment stage.