Fishing industry sues over offshore wind farm, says the DOI didn’t properly permit Vineyard Wind

When one turbine on the Vineyard Wind project near Martha’s Vineyard began supplying electricity to the grid in January 2024, the project stood as the first step in the Biden administration’s plan to develop 30 gigawatts of offshore wind along America’s coastline by 2030. 

Since then, the project experienced a blade failure that dumped a football-field sized blade into the ocean and littered the beaches of Nantucket with sharp and toxic debris. Nantucket-based activists ACK 4 Whales sued over the permitting of the project, arguing that the Department of Interior (DOI) wasn’t factoring cumulative impacts into its environmental assessment of the project. 

The Federal Court of Appeals for the First Circuit upheld a district court's decision to dismiss the suit, ruling that it had to defer to the federal agencies’ interpretation of the ESA requirements. The U.S. Supreme Court denied certiorari to ACK 4 Whales and now the Texas Public Policy Foundation is suing the DOI on behalf of six commercial fishing companies that say their livelihoods will be decimated by the project. 

Their lawsuit, which was filed in the U.S. District Court for the District of Columbia, argues in 33 separate claims under various laws that the approval of the project violated federal law by ignoring multiple legal protections for impacted stakeholders, including conducting environmental assessments and allowing for timely public comment. 

The complaint also argues that the federal government knew the project would severely impact the commercial fishing industry. The Final Record of Decision issued by the Bureau of Ocean Energy Management for Vineyard Wind states, “Vineyard Wind is not authorized to prevent free access to the entire wind development area, due to the placement of the turbines it is likely that the entire 75,614 acre area will be abandoned by commercial fisheries due to difficulties with navigation.” 

The complaint also asks for injunctive relief, including "enjoining all further wind farm construction and related activity within the Vineyard Wind lease area; enjoining all further wind farm construction and related activity within any leases awarded under the “Smart From The Start” program; and Enjoining the Federal Defendants from accepting submissions for wind leases under the Smart From The Start program."

Life-threatening situation

Meghan Lapp, spokesperson for Seafreeze Ltd., the lead plaintiff in the case, told Just the News that offshore wind projects not only destroy the habitat of marine species, but they also present a safety hazard to people.

Seafreeze owns and operates fishing vessels, and they purchase squid from other operators, which they then freeze. Underwater cables run between the towers and to the shore to transport the electricity generated in the turbines to substations on land. These cables are a serious risk to fishing operations, Lapp explained. 

“The risk of snagging your gear on the underwater infrastructure of this project is very high, and then you can put you and your crew in a life-threatening situation, potentially,” Lapp said. One local television station reported that "the Bureau of Labor Statistics ranks commercial fishing as the deadliest job in the United States."

Lapp said the offshore wind industry knows of this risk. She provided Just the News with a report produced by Primo Marine, a marine consultancy company, that shows the potential consequences of snagging fishing gear on an undersea cable. It’s almost impossible to release the cable, and it warns that the boat could capsize if the cable isn’t lowered. The report concludes with a paneled illustration of a boat ending up on the bottom of the ocean after snagging an undersea cable. 

Prior to the approval of Vineyard Wind, Lapp submitted comments that cites notices from offshore wind developer DONG Energy, which is now Orsted, warning United Kingdom fishermen that “loss of gear, fishing time, and catch can result if a trawler snags a subsea structure, and there is serious risk of loss of life.” 

Lapp explained that the nets that squid boats use can extend up to a half mile behind the boat, and to harvest the squid, the fishermen try to get the nets to follow contours of the sea bottom. Out on the ocean dealing with currents, winds and tides, the boats need a lot of maneuverability to keep the nets directly behind the boat. If these nets snag and get damaged, it’s time consuming, expensive and dangerous to deal with. 

She said when they’re operating at night, in fog, or in blizzards, the fishermen use radar. The turbines interfere with radar, which creates yet another hazard. Lapp said in permitting Vineyard Wind, the impacts of the turbines on radar was ignored. 

“They ignored it the whole time, until after vineyard wind was approved. Finally, the National Academies of Sciences came out with a study called “Wind turbine generator impacts to marine vessel radar.” They actually quoted my comments to the Coast Guard,” Lapp said. 

"Building Manhattan" on squid ground

Besides the impacts to gear and safety concerns, Lapp said, the areas where squid are found are the same areas favorable to erecting towers. 

“If you've ever gone to a restaurant and had calamari, that is squid, right? And so there's a chance that that squid was caught in this area. That area [of Vineyard Wind] and areas adjacent to it are our major summer squid fishing grounds for many vessels,” Lapp said. 

Squid’s preferred habitat, Lapp said, is areas of the seafloor that are sandy, as opposed to rocky, which are called soft bottom areas. 

“They go there every single year. They have forever. And so this area is a known squid ground,” Lapp said. 

To build wind towers, developers pile drive 30-foot wide monopiles into the seabed floor. Lapp said this activity impacts the squid, but the impact to the species continues long after construction. They emit low-frequency noise, which propagates through the water. Lapp noted that this noise is detrimental to mollusks, such as oysters, and cephalopods, a category that includes squid. 

“It shakes their whole body,” Lapp said, and it causes injuries in their inner ear which can kill them. These wind projects — and there are others planned for the area, such as Empire Wind off the coast of New York — are changing the habitat.

“Now you have all these poles everywhere, cables emanating electromagnetic fields. And then they cover the bases, large areas, acres per turbine, of the ground with rocks to prevent scour,” Lapp explained. “You’re essentially building Manhattan on top of the habitat that these species need to survive.” 

Federal law requires reasonable uses

While the ocean may seem big enough that fishermen can move their operations away from wind farms, Lapp said it doesn’t work that way. “Fish are not just evenly distributed throughout the ocean. Kind of like on land. You want to go moose hunting, you go to Maine or you go to Alaska,” Lapp said. 

Commercial fishing operations on the coasts require federal permits, Lapp explained, and the industry is among the most heavily regulated in the country. Federal law, Lapp said, requires that offshore wind developers ensure compliance with certain requirements. That includes safety, protection of the environment, and prevention of interference with reasonable uses of the ocean.

As a federally permitted practice, commercial fishing, Lapp said, is a legal and reasonable use. When the developers are citing where to build their projects, they aren’t looking where fishing is happening to determine if there are any conflicts. 

Hope after fall of Chevron deference

Seafreeze was one of three companies whose lawsuit against the Department of Commerce overturned the “Chevron deference” doctrine, which allowed federal agencies broad latitude in interpreting laws when Congress had not provided specific guidelines. Under that now-reversed doctrine, if Congress granted an agency the general authority to make rules with the force of law, courts generally deferred to the agency’s implementation of that general authority.

Lapp said that their success in getting the Supreme Court to overturn Chevron deference will help their complaint against the permitting of Vineyard wind. Judges now have to independently assess if an agency followed the law, whereas previously, they deferred to the agency’s interpretation of the law. 

The industry’s hopes, Lapp said, are also bolstered by the Trump administration’s moratorium on offshore wind leases while the DOI conducts review of the ecological, economic, and environmental impacts of the offshore wind industry. That review could terminate or amend existing leases. 

For now, Seabreeze and the other plaintiffs are hoping the courts will consider their petition. Should the offshore wind developers continue to build their projects where the fishing operations are carried out, Lapp said it will be the end of their industry. 

“I have not heard of one commercial fisherman who was willing to risk his life and the lives of his crew to even transit through this area. So that's a really big problem. Commercial fishing and offshore wind cannot coexist in the same place at the same time,” Lapp said. 

The DOI declined to comment on the lawsuit, saying it doesn’t comment on pending litigation.