SouthCoast Wind Challenges DOJ’s Delaying and Political Agenda

The developers of the proposed SouthCoast offshore wind project filed their response to the Department of Justice’s efforts to derail the approved project, calling the filing “yet another example of the president’s ongoing coordinated attack on this renewable energy industry.”

The response came as the Department of Justice filed on September 18 with the U.S. District Court in the District of Columbia seeking to voluntarily remand and stay a suit by the Town of Nantucket against the Department of the Interior, the Bureau of Ocean Energy Management, and SouthCoast Wind. DOJ is asking the court to defer indefinitely the case and to remand the December 2024 Record of Decision for the project so that BOEM can reconsider the approval of the Construction and Operations Plan.

Nantucket challenged the approvals repeatedly for the project, which would provide 2.4 GW of electricity to Massachusetts and Rhode Island. The project, which would be located over 20 miles south of Nantucket and 30 miles south of Martha’s Vineyard, gained its final approvals in the last days of the Biden administration. Nantucket’s latest challenge alleges violations of the National Environmental Policy Act and the National Historic Preservation Act, largely related to the alleged visual impacts of the project on historic resources.

The Trump administration has alleged various issues and claimed the Biden administration rushed the approvals. In the response, the lawyers cite that vital energy infrastructure, of which they said SouthCoast Wind is, was covered under the FAST-41 (Fixing America’s Surface Transportation) Act adopted in 2015, which entitled it to a “streamlined and predictable review and permitting process.” They note the lease dates to 2018 and that they underwent years of rigorous review. They assert that the COP approval was valid and lawfully granted.

The response asserts that the “Federal Defendants have no genuine legal basis to reconsider the COP,” and that it is part of the administration’s “obvious disdain for offshore wind.”

They call the DOJ filing “a verbatim, copy-and-paste request,” from similar filings made in other cases challenging offshore wind. They assert the litigation tactic is made “in bad faith without legal authority.” DOJ’s assertions that the project lacks permits, they contend, is because the pending permits “have been unlawfully withheld” by the administration.

Further, they call it a delaying tactic, noting that DOJ is aware SouthCoast Wind has until December 31 to execute its Power Purchase Agreement with the states. The reconsideration, they note, is an open-ended delay. They highlight that the DOJ already filed for and received a 90-day extension before making its filing in September.

Based on the fact that the Federal Defendant has failed to “demonstrate any genuine or good-faith basis to support their remand request,” calling it instead a “pretext,” SouthCoast Wind asks the court to reject the remand request. 

If the court grants the remand, SouthCoast says judicial intervention would be required. They ask the court to limit the time of the review, to require the Federal Defendants to file biweekly status reports, and to require a monthly status conference until BOEM renders its final decision. They ask the court to require a final decision within 60 days if the court grants a remand.

It is one of several cases that the DOJ is seeking to have the courts remand. Last week, a Maryland district court rejected a filing by the DOJ to stay its case against the US Wind offshore project while the government is in shutdown. The company argued that the government could continue to undermine its project outside the court, and the judge agreed, ordering the case to proceed.