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

The federal district court for the District of Maryland denied US Wind, Inc.’s motion for a preliminary injunction to enjoin an alleged federal decision to revoke the Construction and Operations Plan (COP) for US Wind’s wind project off the Atlantic Coast of Maryland. The court found that US Wind failed to satisfy the tests for ripeness and final agency action and therefore did not demonstrate a likelihood of success on the merits of its claims.

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.

Plaintiffs filed a lawsuit challenging federal approvals for the Construction and Operations Plan for the Maryland Offshore Wind Project. The plaintiffs included local governments in Maryland and Delaware, owners of tourism-oriented businesses, a community association, and plaintiffs representing commercial and recreational fishing interests. The plaintiffs asserted that the federal defendants violated the Administrative Procedure Act, NEPA, the Endangered Species Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the Coastal Zone Management Act, and the National Historic Preservation Act. The alleged NEPA violations included failure to adequately analyze climate change effects of constructing and operating the project. The plaintiffs alleged that the Bureau of Ocean Energy Management (BOEM) failed to analyze supply chain emissions and also alleged that BOEM failed to compare the project’s impacts with the impacts of alternative renewable energy sources or alternative locations and designs. In addition, they alleged a failure to conduct “cumulative-level analysis of climate impacts (positive or negative) associated with the proposed scale of offshore wind development.”