Rough seas for offshore wind: A hard look at causes for delay

Offshore wind has enormous output potential and is critical to grid decarbonization and meeting both national and state-level clean energy goals. However, offshore wind has become the poster child for the difficulties facing clean energy development, and with a temporary moratorium on all new U.S. offshore wind projects from the new administration, it is in jeopardy now more than ever. With the future of U.S. offshore wind uncertain, a retrospective analysis of its troubles is in order. In recent years, even with the flurry of funding, lease sales, permits, and (finally) construction off the East Coast, extensive delays have plagued the industry. The environmental review process designated by the National Environmental Policy Act (NEPA) has often been blamed as a key cause for delays, and efforts in Congress to dramatically cut back NEPA’s scope to “speed up” development have become frequent.  

Clean Air Task Force (CATF) is committed to identifying and addressing the barriers facing clean energy development, and is conducting significant research to understand what drives infrastructure buildout delays. Does litigation brought under NEPA actually and meaningfully delay offshore wind development, or is NEPA simply an easy scapegoat? In taking a quantitative approach, we found that cases brought under NEPA against offshore wind are not the threat they are made out to be – and perhaps efforts to drive clean energy projects forward would be better spent elsewhere. 

Understanding the role of NEPA 

First, a brief primer on the role of NEPA in environmental review of offshore wind permitting, and how exactly it could be used to stop a project. NEPA serves two main purposes: (1) to ensure federal agencies take a “hard look” at a proposed project’s environmental impacts; and (2) to ensure that a project’s impacts are made publicly available, and the public is given meaningful opportunities to engage in the federal decision-making process.  

Federal agencies play a larger role in offshore wind compared to other renewables projects given that offshore wind projects tend to be located in federally leased areas. The Bureau of Ocean Energy Management (BOEM) within the U.S. Department of the Interior is the main agency that permits offshore wind energy projects. This process involves four phases: (1) planning and analysis; (2) lease issuance; (3) site assessment; and (4) construction and operations. Each stage of the review process is subject to NEPA and, as a result, faces potential legal challenges. Project opponents can bring legal claims that the agency failed to conduct sufficient environmental review under NEPA, and most often claim that the agency failed to take a “hard look” at the environmental consequences of the project.  

Understanding NEPA as a prescribed decision-making process, rather than as a required permitting action, is critical to understanding its actual potential for causing delays. NEPA is not a permitting law, but rather a law that requires both agency decision makers and the public to be informed of the environmental impacts of significant projects. NEPA does not require more intensive levels of environmental review, rather, it requires that the agency determine an appropriate level of review and to do so in a way that is transparent to the public. As agencies become more informed of potential environmental impacts, certain types of projects can undergo more expedited review. Additionally, CATF research shows transparency and community engagement are critical for improving project timelines. Cutting back opportunities for communities to engage with the environmental review process by gutting NEPA does not “speed things up”; instead, such efforts actively undermine informed decision-making.  

Importantly, a challenge to an agency’s review of a project does not necessarily stop the project. Unless a court issues a ruling that stops the project, such as granting a preliminary injunction or vacating a decision after ruling on the merits, the project can move forward while the case is ongoing. Otherwise, it is only a matter of time before construction begins and complaints – and the case in court – are rendered moot.  

Crunching the numbers 

To understand NEPA’s role in slowing down offshore wind projects, we took a quantitative approach.¹ We developed an inventory of 15 cases brought against 10 offshore wind projects.² For each case, we considered the following: 

1. The length of the litigation (including appeals); 

2. The success of plaintiffs in establishing standing; 

3. The outcome, i.e., whether the plaintiffs succeeded in delaying and/or stopping the project; and 

4. Any other factors at play for delayed/cancelled projects. 

The average length of a NEPA case, including appeals, was around 2.5 years. Averages don’t tell the whole story and can be misleading, so we plotted the data below to show the distribution: 

Length of NEPA Cases in Years 

Our analysis found: 

• About 25% of the cases took around 1.5 years or less, and 75% of cases in the dataset took 3 years or less;  

• About 25% of the cases took between 3 and 4.5 years; and 

• One outlier case against Cape Wind took 6 years to complete. 

Early outliers 

Importantly, of the 15 completed cases in the dataset, plaintiffs were unsuccessful in all but one: Public Employees for Environmental Responsibility v. Hopper (2016) regarding the Cape Wind project. In this case, the U.S. District Court for the District of Columbia had found that BOEM complied with NEPA and the project satisfied site-specific data requirements. However, the opinion of the District Court was reversed by the D.C. Circuit, which stated that Cape Wind would not need to repeat environmental reviews, but would have to provide more data before continuing in the permitting process: 

We will vacate the impact statement and require the Bureau to supplement it with adequate geological surveys before Cape Wind may begin construction. We will not, however, vacate Cape Wind’s lease or other regulatory approvals based on this NEPA violation.

Cape Wind is the only project where it can be confidently said that its legal battles under NEPA, fought for over a decade at both the state and federal levels, contributed heavily to its cancellation, and this high-profile example created the perception that NEPA is a major barrier to offshore wind development. However, given that Cape Wind was the first ever attempt to construct an offshore wind project, and the offshore wind permitting process was still in its infancy, Cape Wind now appears to be an outlier among all cases. 

Of the 15 completed cases, approximately half of the challengers were successful in establishing standing for NEPA claims and were able to proceed to the merits of the case. All completed cases, bar the one against Cape Wind, were unsuccessful in forcing a new round of environmental review. Of the seven completed cases where motions for preliminary injunctions were filed (without which a project can continue to proceed to construction during the course of litigation), none were granted.  

Rock, meet hard place 

There are 13 ongoing cases against offshore wind. While our research has not shown these federal cases to be successful at delaying projects, the other challenges the industry face are many, complex, and compounding, and deserve significant attention. States, particularly in the Northeast, have made offshore wind  a central part of their mandated decarbonization plans. 

Projects face a robust anti-offshore wind movement, with community opposition to offshore wind projects continuing to be strong and becoming a nationalized effort, some with clear ties to powerful fossil fuel interests disseminating widespread misinformation, particularly on the effects of projects on the right whale. Buy-in at the state and local levels has emerged as critical to the success or slowdown of the offshore wind sector (e.g., transmission line landing locations).  

Events outside the offshore wind sector at the global level have also presented significant challenges. Developers cite extensive supply chain issues and high interest rates making their projects difficult to finance. These issues have largely stemmed from outside shocks, such as supply chain issues caused by the pandemic, the global energy shock caused by Russia invading Ukraine, inflation in costs of materials like steel, and rising financing costs driven by interest-rate increases set by central bankers in U.S. and Europe to combat inflation. These outside events have made it difficult for developers to keep their projects cost-effective.  

With outside events raising costs, strong community opposition at the local level, and high expectations for the industry, project developers are in a difficult position. Rock, meet hard place.  

A tried and failed strategy against offshore wind 

Our research shows that while NEPA litigation is largely unsuccessful in delaying offshore wind, the industry faces other challenges that deserve further attention. Even with these challenges, legal precedent is on the side of offshore wind development. NEPA is designed to “sniff out” those that try to abuse it in court, and our dataset supports that it is working in the courts as intended. NEPA is not a barrier for development; rather, it is the designation of a necessary process that ensures infrastructure development is productive, informed, and provides a crucial opportunity for meaningful community engagement that can improve buy-in and reduce project timelines.  

Admittedly, the permitting process designated under NEPA, while necessary, has room for improvement. Recognizing the need for faster permitting for clean energy buildout, CATF has come up with several recommendations on how to improve this process, including but not limited to: improving the capacity of permitting agencies, harmonizing permitting processes, and working with communities to encourage support.  

The challenges facing offshore wind are fierce, complex, and require intense effort; NEPA should not be the easy target of those attempting to give developers a helping hand. A hard look at the consequences is sorely needed. 

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¹ For our dataset, we looked at the commercial offshore wind leases registered by BOEM, of which there are 41 (including cancelled and relinquished leases, and excluding research leases). From there, we looked at which projects had cases brought against them. 

² Our dataset does not include ongoing active cases. According to American Clean Power Association, there are currently 13 cases pending in federal courts against offshore wind projects as of October 2024.