Posted on April 12, 2024
NEW LONDON, CT – As Danish Energy developer Ørsted is preparing to start work on its Revolution Wind offshore energy farm, a lawsuit may create problems before construction can get underway for the 65-turbine project that is expected to power homes in Connecticut and Rhode Island.
The agency that granted Ørsted the permit for the project, the federal Bureau of Ocean Energy Management (BOEM), is being challenged in federal district court by two Rhode Island non-profits, The Preservation Society of Newport County and The Southeast Lighthouse Foundation, who claim the agency is flouting the law and ignoring the rights of historic organizations as well as indigenous tribes. The nonprofits also claim that the turbines will spoil the uncluttered view of the ocean for residents and tourists and as such threaten their communities’ livelihoods.
In November 2023 the law firm Cultural Heritage Partners filed lawsuits against BOEM for both South Fork Wind and Revolution Wind (appeals one and two), alleging that BOEM ignored the National Historic Preservation Act, which was legislation intended to preserve historic and archaeological sites in the United States. The act created the National Register of Historic Places, the list of National Historic Landmarks, and the State Historic Preservation Offices.
The lawsuits also allege that the BOEM ignored The National Environmental Policy Act, which requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions.
CT News Junkie reached out to BOEM for comment on this story but were told BOEN does not comment on active litigation.
Greg Werkheiser, a partner at the Cultural Heritage Partners law firm, said that although their cases are in the early stages and South Fork Wind has already been completed and is generating electricity to homes on Long Island, that won’t stop the court cases.
“The aim of these lawsuits is not necessarily to stop a wind farm from being developed or put into service,” Werkheiser said. “The aim of these lawsuits is to make sure that the US Government follows its own very clear laws and regulations.”
Werkheiser said BOEM has a duty to follow the laws of the land before it makes decisions and issues permits.
“What BOEM has done and is doing in just about every offshore wind project that they’re permitting now on a very fast timetable is they have illegally reversed that order,” Werkheiser said. “So, instead of looking at the damages, figuring out how to deal with the damages and then issuing a permit. They are simply issuing a permit with a promise to look at the damages and figure out how to mitigate them later.”
Werkhesier says there couldn’t be a clearer error in how this consulting process is supposed to work and that’s partly why his clients have filed their legal challenges.
“What my clients are asking for is simply to follow the law,” Werkheiser said, adding, “What a court could order in any of these projects is for BOEM to go back and do things properly. In theory it could order a suspension of the operations of South Fork or they could order permits not be issued until BOEM has done its job.”
He says his clients are not opposed to clean energy or necessarily the wind farms either, but if the laws are ignored and the courts don’t correct the situation, it will mean that any future projects or developments will be able to do as they please.
Another aspect of the lawsuits is what his clients have called their “viewsheds.”
Both nonprofits have properties that have ocean views and that, he says, is part of their tourism draw, the unencumbered ocean views that frame the historic properties and are a big part of why people visit them he says.
Werkheiser says that if the offshore wind companies get their way and build the number of windfarms they get leases for, those clear ocean views will include between 500 to 600 wind turbines a few miles from the Rhode Island coast.
The “industry acknowledges a very likely harsh impact on heritage/tourism economies,” Werkheiser said. “If your community makes a billion dollars in revenue every year, because people from around the world come there to experience the historic nature of the community, including their viewsheds of the ocean and let’s say if 15% of those people decide they aren’t coming back because now 100% of your ocean views are occupied by up to a 1,000 wind turbines, spinning for the next 30 years. Then you’re potentially losing 15% of a billion dollars every year for 30 years.”
And he says it’s not just his clients that could be affected, it will have a trickle down effect for other local businesses like hotels and restaurants who could also see a downturn.
But he stresses, it’s not just about his clients only, the issue affects other communities as well.
In early 2023 the National Congress of American Indians (NCAI) issued an offshore wind moratorium hoping to get their voice heard and a seat at the table when BOEM was considering new offshore lease applications.
Werkheiser says despite their efforts, they have been ignored as well and many of the tribal nations that have access or lands connected with the oceans and continue to make a living or rely on those water-related resources are now considering their own legal actions, too.
“We represent clients including native American tribes who are deeply concerned about the lack of research into the potential harms on fish populations that they have been historically and culturally long affiliated with.”
Werkheiser says the Upper Mattaponi Tribe of Virgina are very concerned about the Atlantic Sturgeon, which they have long cultural connections to and with the species already endangered by other projects the possibility of offshore wind farms off the Virgnia coast will not help the situation.
And in the northeast, the Shinnecock Nation in New York State and their leader Lance Gumbs has been widely reported speaking out about the lack of communication or engagement his tribe has had with the federal government and wind developers and has formed a coalition of 15 tribes from Maine to Virginia.
CT News Junkie reached out to Connecticut’s two larghest tribal nations for comment about their stance and involvement in offshore wind but neither provided a comment.
And in a lengthy statement from the NCAI they said.
“NCAI wants to be very clear that Tribal Nations do not oppose the concept of wind energy and do not oppose the concept of any form of clean or green energy. Tribal Nations and Indigenous Peoples worldwide are among the peoples most affected by global climate change.”
“While many people ask, ‘what is wrong with the wind energy industry’ and while there are some issues with the industry as a whole, for Tribal Nations in the U.S., the concern right now is with how the process used by the U.S. government to grow this industry and to regulate this industry. Right now the U.S. government is trying to fast-track wind energy — particularly offshore wind energy — and, in many cases, they are doing so in waterways that are the traditional waters of Native people; and they are doing so in places where the waterways are critical for cultural reasons, for subsistence reasons, or for economic reasons. The U.S. government has legal obligations to Tribal Nations and is entrusted with certain duties for Tribal Nations and the primary concern of many Tribal Nations is that the U.S. is not carrying those out with the best-interest of Native people in mind.”
The NCAI declined to answer whether they or any tribal nations are currently considering or taking legal action against BOEM.
Werkheiser says he expects his client’s lawsuits to begin being heard in May and depending on the court’s decision, they will either reach an agreement with BOEM and the developer, Orsted, who he says has joined the lawsuits against BOEM to defend their projects, or the cases will go to trial.
