Seaside community groups in New Jersey banded together to challenge environmental approvals and financial subsidies for the Ocean Wind 1 project—a wind farm proposed for off the Jersey Shore.
Although the project’s developer, Danish energy giant Orsted, abandoned the project on Nov. 1, the environmental advocates say the threat isn’t over, and they’re preparing to fight again.
“We want to stop these projects from happening,” Robin Shaffer, spokesman for Protect Our Coast NJ, told The Epoch Times.
“This is ... David versus Goliath. We’re taking in small contributions for the most part, and we’re combating multibillion-dollar energy companies, as well as the federal government and the state government of New Jersey.”
Protect Our Coast NJ, along with two other local organizations, Defend Brigantine Beach and Save Long Beach Island, objected to the consistency review approval issued by the New Jersey Department of Environmental Protection (DEP) for the Ocean Wind 1 project—98 giant turbines planned for 15 miles offshore of Cape May County.
Protect Our Coast NJ and Defend Brigantine Beach also filed a lawsuit against the state of New Jersey for a law granting subsidies to Orsted, claiming that it was unconstitutional.
Because Orstead’s Ocean Wind 1 was canceled, the lawsuits may be moot.
“We are considering whether to withdraw the subsidy case as moot, subject to reopening it if some other company attempts to step into Ocean Wind 1,” Bruce Afran, an attorney for both lawsuits, told The Epoch Times.
The challenge to the state’s environmental approval for Ocean Wind 1 may also be moot.
However, another wind farm, called Atlantic Shores, is planned for nine miles off the coast of Atlantic City and Long Beach Island. This project, a 50/50 venture between Shell New Energies and EDF-RE Offshore Development, will have up to 200 turbines; it poses all the same environmental problems as Ocean Wind 1.
The community groups plan to fight it.
‘It Was Just Not Being Done Right’
Two years ago, Mr. Stern attended a public presentation about the Atlantic Shores offshore wind farm.“It struck me that it was just not being done right,” Mr. Stern said. “They were saying things like the wind turbines would be barely visible or rarely visible. I knew from a little geometry that that’s just completely false.”
Mr. Stern previously worked for the U.S. Department of Energy, managing an office that produced environmental impact statements on coal, oil, gas, geothermal, and nuclear energy projects.
“I’m familiar with the process, even though at that time, we did not have offshore wind projects,” he told The Epoch Times.
“If you’re going to present information, you have to present all the information and do it objectively.” Mr. Stern said. “Don’t take sides with the data. People can have different opinions about what to do with the facts, but they ought to get the facts first.”
Mr. Stern wrote an article about the wind farm in a local newspaper, suggesting that there were problems with what was presented. He received a lot of community feedback.
“From that, we set up the Save Long Beach Island organization to educate people and also to propose alternatives,” he said, “because we felt that the location of this project just makes absolutely no sense.”
The group now has about 8,000 supporters.
Mr. Stern said he expects the New Jersey DEP to approve the Atlantic Shores wind farm.
New Jersey DEP Acknowledged Harm
Final approvals for ocean wind projects are issued by the federal Bureau of Ocean Energy Management. First, however, states must determine that the projects are consistent with their own environmental laws, called a “consistency review.”Save Long Beach Island and the other two community groups challenged the New Jersey DEP consistency finding for Orsted’s Ocean Winds 1, claiming that the rules weren’t followed.
“Those rules require protecting endangered species,” Mr. Afran told The Epoch Times. The rules also require protecting commercial and recreational fishing stocks, the visual viewshed from shore, historical sites, and marine species.
With Ocean Winds 1, the DEP and federal government knew they were all at risk, he said.
“This is major environmental harm that’s acknowledged in the impact statement and by DEP,” Mr. Afran said. “Yet the DEP still finds, somehow, in its wisdom, that this is consistent with our Coastal Zone Management Act.
“Now, I think what was happening, in reality, is the DEP staff knows this is not true and they put in an acknowledgment of these harms in order to cut it both ways.
“They wanted to point out the harm, but they wanted to politically satisfy the government. So they found it to be consistent with our coastal zone rules while admitting all of the environmental damage.”
In a separate action, Protect Our Coast NJ, Defend Brigantine Beach, and three individual New Jersey electricity ratepayers sued the state for approving a law that authorized subsidies to a single offshore wind developer—Orsted.
According to the lawsuit, when Orsted sought approval from the New Jersey Board of Public Utilities (BPU) for its wind farm, the company committed to absorbing the cost of building the project and returning its federal tax credits to state ratepayers.
But New Jersey passed a law on June 28, which Gov. Phil Murphy signed on July 6, eliminating that requirement.
“Orsted had agreed it would take no credits,” Mr. Afran told The Epoch Times. “It signed a contract with the Board of Public Utilities that all credits would go to reduce rates for ratepayers, and that Orsted’s investment would be solely from Orsted’s own funds.
“Then, the state turned around, after that was signed, and gave Orsted up to a billion dollars in federal tax credits to use for its construction, which is a violation of the agreement made with the BPU. So we sued.”
Mr. Afran said that the subsidy law is unconstitutional for two reasons: First, the New Jersey constitution prohibits laws that benefit single parties—in this case, Orsted.
“Second, Orsted signed a contract with the New Jersey BPU guaranteeing the company would bear all construction costs and its tax credits would be used to reduce electric rates,” he told The Epoch Times. “The New Jersey Legislature violated the contract.
Legal Tools to Fight Offshore Wind
Challenging the New Jersey DEP’s consistency review and the state-awarded subsidies were innovative legal approaches that Mr. Afran said he thinks influenced Orsted’s decision to abandon Ocean Wind 1.“No one realized, I think, that you could challenge those subsidies,” he told The Epoch Times. “Everyone assumes the legislature has the power to do it. Well, it doesn’t. It can’t set aside the BPU contract protecting ratepayers, and it can’t just give a special gift to one company.”
Mr. Afran also said he believes that the complaint against the DEP consistency decision is the first time anyone has challenged such a state finding.
The three community groups’ legal challenges to the wind farms point to a big difference between the United States and Europe, where many wind farms have been built.
“There’s really a lack of ability in most countries, including democratic countries, to object to these government-sponsored projects,” Mr. Afran said.
“But here we have this huge range of tools that the average citizen and citizens groups can use—your planning board tool. Your access to the Board of Public Utilities. Your use of the state Constitution, as we did here.
“And the use of federal environmental laws, which allow anyone in the United States with any direct interest in this matter—a ship captain, a whale-watching group, a restaurant owner on the shore, a hotel owner on the shore—to go to court under the National Environmental Policy Act and challenge any of these plans.
“That power does not exist in most countries. This is one reason why, frankly, offshore wind is not taking root very quickly here—because this power exists and citizens can use it. Orsted and other companies have begun to feel the force of that.”
Mr. Aran noted that many people say the United States is behind Europe because of how many wind farms are being built there. He disagreed.
“In places where they push these things, there is no general right to challenge them by the citizens,” he told The Epoch Times. “We’re not behind Europe. We’re ahead of Europe because we recognize greater rights.”
