Posted on February 13, 2025
A US federal appeals court has rejected a challenge to a ruling that allows foreign-flag ships to install rocks in key stages of an offshore wind project.
The case filed by Great Lakes Dredge & Dock in the Fifth Circuit Court of Appeals was a test of the limits of the Jones Act, the law that requires US-built, American-controlled vessels to carry cargoes between two US points.
At stake was whether that included carrying rocks from America’s shores to the seabed of the Outer Continental Shelf.
Great Lakes Dredge, a Houston marine contractor that has ordered a subsea rock installation vessel newbuilding at what is now Hanwha Philly Shipyard in Philadelphia, sued the US government in 2022 in a bid to ensure such vessels are protected from foreign-flag competition.
But the Fifth Circuit court has unanimously affirmed a decision by a lower court judge to throw out that case after ruling the company did not have standing to sue.
Circuit judge Stuart Kyle Duncan, writing for the Fifth Circuit Panel, said Great Lakes Dredge was incorrect in its argument that it did not matter whether increased competition actually materialised as a result of regulatory action.
“It is not enough to say that lifting a regulatory barrier may potentially allow more competition down the road,” the judge wrote, arguing that US Customs and Border Protection’s decision impacting future projects was purely speculative.
The legal fight began after Great Lakes Dredge wrote to Customs in 2020 over the Vineyard Wind project off Massachusetts. The company wanted the agency to rule on whether the Jones Act bars foreign-flag vessels from moving scour protection rocks, which are placed around the base of offshore wind turbine structures, to the sea floor in US waters.
No ‘coastwise’ point
Customs ruled that Jones Act vessels are not required when placed on a pristine seabed, as it does not count as a “coastwise” point. Once the first layer of rock is placed, then Jones Act vessels are required for subsequent delivery of stones from the US.
The Fifth Circuit decision leaves in place that interpretation, said Winston & Strawn lawyer Charlie Papavizas, who represented the American Petroleum Institute in the case.
“This makes a difference in the early stages of offshore wind installation and oil and gas exploration,” he said.
The appeals court decision leaves that ruling in place, allowing foreign-flag vessels to carry the rock at a key stage in offshore wind farm projects.
Great Lakes Dredge sued in the US District Court for the Southern District of Houston to assert that the decision would expose its newbuilding to unfair foreign competition. The order originally cost $197m, but a financial application with the US Maritime Administration shows a cost of nearly $247m.
The American Petroleum Institute, an oil and natural gas industry group whose members are also involved in offshore wind, successfully challenged Great Lakes Dredge’s standing to sue because its vessel was not competing to work on Vineyard Wind.
In fact, construction of the 15,000-gt Acadia has been facing delays and is now scheduled for 2026 delivery.
