Grounds for Eviction?
Offshore wind appears to violate the terms of its lease with the U.S. Government prohibiting "undue harm" or "damage" to the environment.
Could the ability of Atlantic Shores to construct two massive offshore wind turbine projects off New Jersey hang on the interpretation of a 2016 contract prohibiting “undue harm” or “damage” to the environment?
Documents found at the Bureau of Ocean Energy Management (BOEM) website spell out in surprisingly clear language why the construction, operation, and decommissioning of the proposed projects will violate its lease agreement.
At issue is a 2016 document, a lease between the United States of America, represented by BOEM, and US Wind, the company that originally obtained the rights to area 0499. That part of the seabed has since been transferred to Shell and EDF Renewables in 2018 and is now commonly known as Atlantic Shores South.
The agreement gives the current lessee the right to submit to BOEM site assessment and construction plans, and ultimately to “conduct activities” to “generate energy using wind turbine generators,” along with “offshore substations platforms” and submarine cables.
Section Seven in the lease (one of 20), entitled Conduct of Activities, stands out in its simplicity. It says in part:
The Lessee further agrees that no activities authorized by this lease will be carried out in a manner that:
(b) could cause any undue harm or damage to the environment;
(c) could create hazardous or unsafe condition …
If it seems odd to you that the lead federal agency for all these offshore wind projects would add such a provision, especially as these leases are signed well before any in-depth environmental assessments are conducted, you’re not alone.
In 2011 when the lease template first appeared in the Federal Register for public response, some commenters requested that BOEM make changes. Nine diverse groups supporting offshore wind, including the Natural Resources Defense Council and the National Wildlife Federation, noted that a full EIS (Environmental Impact Statement) would not have been conducted before the issuance of the lease. That, they said, would necessitate “undue harm or damage” to be revised in broader language. They also provided a paragraph of complex legalese they requested be added to the section.
The Offshore Wind Development Coalition in Washington, D.C. thought Section Seven was “unreasonably broad”, and wanted BOEM to add that it would be the sole judge of environmental harm or damage. (Files available at end of the article.)
Despite those proposed changes, Section Seven remained intact, and the lease has since been signed by several dozen offshore wind developers over the years and incorporated in numerous lease transfers and consolidations including those involving Atlantic Shores, Orsted, and Equinor. (In a 2022 paper from BOEM to Atlantic Shores splitting its lease into the “north” and “south” areas, BOEM incorporated the original 2016 lease into the new document.)
So, what might this mean for Atlantic Shores in practical terms?
Since the Atlantic Shores South final Environmental Impact Statement, released in May of 2024, details the environmental disruption and damage the turbines would likely create, could the Section Seven terminology be grounds for a judge to stop the project in its tracks? And what about all the other wind energy projects up and down the East Coast bound by this lease? And why hasn’t this seemingly small but potentially show-stopping technicality been addressed before?
Also not yet explored is how the recent U.S. Supreme Court ruling knocking down Chevron could come into play if the lease were taken before a judge.
‘One might argue that the lease could be invalid’
Princeton attorney Bruce Afran, who represents several environmental groups seeking to stop the construction of Atlantic Shores I and II, when made aware of Section Seven said, “This may be a very strong argument to block these projects.
“The lease was entered into before the Environmental Impact Statement (EIS). We now know that there will be moderate to major harm to the ecosystem caused by these projects.”
The EIS Afran is referring to was issued by none other than BOEM. It’s well over 500 pages with an additional 14 appendices that include shocking “visual impact assessments” of how hundreds of turbines will look from different onshore locations.
“BOEM says there will be moderate to major environmental harm,” said Afran, “including interference with whale migration corridors, deaths of invertebrate species, and loss of native species in exchange for others.
“The EIS speaks to the destruction of the benthic system, which is the seabed ecosystem. To me, that is undue environmental harm, what the lease says you can’t do. One might argue that the lease could be invalid.”
And as to why Section Seven hasn’t yet been tested in court, Afran offered this – “It likely falls into the category of not noticed yet.”
Meanwhile, back at BOEM headquarters,..
On November 2023, BOEM added an interesting addition to its Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf called Section 21: Waiver.
This allows BOEM to “waiver certain requirements set forth in this Lease upon a request from the Lessee to BOEM explaining why compliance…is not technically or economically practical or feasible.”
A BOEM official described Section 21 as “a new section added by BOEM based on lessons learned implementing prior leases.” By 2024, Section 21 was revised again. This time the name was changed to “Variance,” and more language was added about requesting such a variance from “the requirements of this lease.”
But Section Seven of the lease remains — and so does the identity of the lessor, or to use the more common phrase, the landlord, which is none other than “The United States of America.”
The above file was submitted by the U.S. Fish and Wildlife Service in response to the Federal Register notice of BOEM’s lease template for offshore wind in 2011. Of interest, Fish and Wildlife — also within the Department of Interior — takes exception to Section 9, “Indemnification.”
“This section seems to indicate the Lessee is solely and ultimately responsible for ‘indemnify the Lessor for, and hold the Lessor harmless from, any claim, including claims for loss or damage to natural resources’ …however, responsibility for compliance with the Endangered Species Act (ESA) cannot be transferred to the Lessee.”
So incredibly ugly. And the poor sea life - whales! and birds! Imagine having spent a fortune on a seaside house only to have that monstrous display of useless junk on your horizon “pop up” over how many summers to complete it? What a gigantic scam. Wish the east coast leftards would WFU. Excuse my language but I have been browbeaten for the better part of NINE years with their commie shenanigans and I’ve pulled the plug on decent rhetoric when it comes to these nature- rapists.
I like your POV. Thank you 🙏🏻 Best of luck 🇺🇸
Great work Linda Your are the Bomb Locater of journalism 👏 and this could just be the fuse we've been looking for If it's "not technically or economically practical or feasible" than you can't do it If it causes undue harm or damage, which it has already done, than you can't do it
And if the landlord is We The People we say no No tax dollars no tariffs no bail outs or other Federal Monies or land grant usage
Wonderful work Thank you for always digging a little deeper and finding that nugget