Kinsella v. Bureau Of Ocean Energy Management

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SIMON V. KINSELLA,

Plaintiff, MEMORANDUM AND ORDER

Case No. 23-CV-2915-FB-ST

-against-

BUREAU OF OCEAN ENERGY

MANAGEMENT; DEB HAALAND,

Secretary of the Interior; U.S.

DEPARTMENT OF THE INTERIOR,

Defendants

and SOUTH FORK WIND LLC,

Defendant-Intervenor.

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Appearances:

For the Plaintiff: For the Defendants:

SIMON V. KINSELLA, pro se VINCENT LIPARI

Post Office Box 792 Assistant United State Attorney

Wainscott, New York 11975 Eastern District of New York

610 Federal Plaza, Fifth Floor

Central Islip, New York 11722

For the Defendant-Intervenor

JANICE M. SCHNEIDER

Latham & Watkins LLP

555 Eleventh Street, NW, Suite 1000

Washington, D.C. 20004

BLOCK, Senior District Judge:

Pro se plaintiff Simon V. Kinsella opposes construction of a wind farm off

Long Island. He sues the Department of Interior, its Secretary and its Bureau of

Ocean Energy Management (“the Federal Defendants”). The farm’s developer,

South Fork Wind LLC (“SFW”), has intervened as a defendant.

All defendants now move to dismiss for lack of standing pursuant to Federal

Rule of Civil Procedure 12(b)(1). In addition, SFW moves to dismiss for failure to

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In response,

Kinsella moves for leave to file a second amended complaint.

Because Kinsella is proceeding pro se, and because his proposed second

amended complaint drastically simplifies his claims, the Court grants leave to

amend. However, having considered the second amended complaint, the Court

concludes, for the reasons explained below, that Kinsella lacks standing to pursue

his claims against the Federal Defendants and fails to state a claim against SFW.

Accordingly, the motions to dismiss are granted.

I. BACKGOUND

SFW’s wind farm consists of two parts: the farm itself, situated 35 miles

east of Montauk Point, and an “export cable” to deliver the power generated to an

onshore electrical grid in East Hampton. The Federal Defendants issued permits

for the offshore portion of the project and, in conjunction with those permits,

prepared a Final Environmental Impact Statement (“FEIS”). By contrast, the siting

of the onshore cable—which includes a 7.6-mile stretch running through New

York’s territorial waters to East Hampton—fell within the jurisdiction of the New

York Public Service Commission (“NYPSC”). On March 18, 2021, NYPSC

issued a Certificate of Environmental Compatibility and Public Need under Article

VII of the New York State Public Service Law, allowing the onshore portion of the

project to move forward. NYPSC’s permit came after years of administrative

proceedings, followed by an unsuccessful state-court appeal of the decision. See

Citizens for the Pres. of Wainscott, Inc. v. New York State Pub. Serv. Comm'n, 188

N.Y.S.3d 639 (2d Dep’t 2023).

BOEM issued its FEIS on August 16, 2021, and approved SFW’s

construction and operations plan (“COP”) on January 18, 2022. Two federal

lawsuits followed. In Mahoney v. United States Department of the Interior, four

residents of the hamlet of Wainscott in East Hampson sought to enjoin the digging

of trenching for the cable, arguing that the FEIS did not adequately consider the

effect of the digging on perfluoroalkyl and polyfluoroalkyl substances (“PFAs”)

already present in the groundwater. The Court denied preliminary injunctive relief,

see 2022 WL 1093199 (E.D.N.Y. Apr. 12, 2022), and, later, dismissed the case for

lack of standing because the alleged exacerbation of PFA contamination was

“directly traceable to NYPSC, which had exclusive jurisdiction over onshore

trenching.” 682 F. Supp. 3d 265, 270 (E.D.N.Y. 2023).

Meanwhile, Kinsella filed suit in July 2022.1 Like the plaintiffs in Mahoney,

he sought a preliminary injunction, which was denied. See Kinsella v. Bureau of

Ocean Energy Mgmt., 2023 WL 3571300 (E.D.N.Y. May 18, 2023). As the Court

presciently observed, “Kinsella seeks the relief from this Court that he and his

neighbors have repeatedly sought and failed to obtain—a bar to the Project’s

construction.” Id. at *2.

Although Kinsella seeks the same relief as the plaintiffs in Mahoney, his

second amended complaint is not a carbon copy of the complaint in that case. His

first three claims are against SFW for “common-law fraud” based on alleged false

statements and omissions in its COP. He then asserts four claims against the

Federal Defendants based on alleged violations of the National Environmental

Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C). The Court addresses those claims

in reverse order.

II. STANDING

“Standing is the threshold question in every federal case, determining the

power of the court to entertain the suit.” Ross v. Bank of Am., N.A., 524 F.3d 217,

222 (2d Cir. 2008) (internal quotation marks omitted). “Where, as here, standing is

challenged at the pleadings stage, a court must ‘accept as true all material

1The suit was originally filed in the District Court of the District of

Columbia and transferred to the Eastern District of New York in November 2022.

allegations of the complaint, and must construe the complaint in favor of the

complaining party.’” Lowell v. Lyft, Inc., 352 F. Supp. 3d 248, 255 (S.D.N.Y.

2018) (quoting United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998)).

However, “[j]urisdiction must be shown affirmatively, and that showing is not

made by drawing from the pleadings inferences favorable to the party asserting it.”

APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation marks

omitted). Moreover, the court “may consider affidavits and other materials beyond

the pleadings to resolve the jurisdictional issue.” J.S. ex rel. N.S. v. Attica Cent.

Sch., 386 F.3d 107, 110 (2d Cir. 2004).

“[T]o establish standing, a plaintiff must show (i) that he suffered an injury

in fact that is concrete, particularized, and actual or imminent; (ii) that the injury

was likely caused by the defendant; and (iii) that the injury would likely be

redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423

(2021) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “If the

plaintiff does not claim to have suffered an injury that the defendant caused and the

court can remedy, there is no case or controversy for the federal court to resolve.”

Id. (internal quotation marks omitted).

As in Mahoney, Kinsella’s chief claim is that he has been injured by a

potential worsening of PFA contamination in the groundwater. But as the Court

previously explained, “[t]o show a ‘causal connection between the injury and the

conduct complained of,’ a plaintiff must demonstrate that their injury is fairly

traceable to the defendant's actions, ‘not the result [of] the independent action of

some third party not before the court.’” 682 F. Supp. 3d at 269 (quoting Lujan,

504 U.S. at 560-61). Here, by contrast, the record reflects that “State and local

entities [like NYPSC] approved Beach Lane as a path for the Export Cable, and the

[the Federal] Defendants understood this choice to have already been made when

issuing permits for the offshore Wind Farm.” Id. at 270. The Federal Defendants’

jurisdiction, on the other hand, “extends only over the portion of the Project

situated on the outer continental shelf, which extends seaward from New York

state waters.” Id. (citing 43 U.S.C. § 1337(p)(1). As the Court went on to explain,

Of course, construction on the Project, including trenching, could not

commence without permits being granted for the Wind Farm—

otherwise, there would be no power for the Export Cable to carry

ashore. But this bare “but for” relationship does not mean that

Defendants’ offshore permits “likely caused” trenching on Beach

Lane and the PFAS contamination Plaintiffs allege.

Id. (quoting TransUnion LLC, 141 S. Ct. at 2203). “Instead, Plaintiffs’ injuries are

directly traceable to NYPSC, which had exclusive jurisdiction over onshore

trenching—precisely an ‘independent action of some third party not before the

court.’” Id. (quoting Lujan, 504 U.S. at 560.).

Kinsella responds that plaintiffs’ counsel in Mahoney failed to argue that 43

U.S.C. § 1333 was amended in 2021. Prior to the amendment, the statute extended

federal law to “installations and other devices permanently or temporarily attached

to the seabed, which may be erected thereon for the purpose of exploring for,

developing, or producing resources,” 43 U.S.C. § 1333(a)(1)(A)(iii) (2020). The

amendment expressly added “non-mineral energy resources,” 43 U.S.C. §

1333(a)(1)(A)(iii) (2021), and “any such installation or other device (other than a

ship or vessel) for the purpose of transporting or transmitting such resources.” Id.

§ 1333(a)(1)(A)(iv). Thus, even as amended, the statute is restricted to

installations and devices attached to the seabed. Moreover, the definition of “outer

continental shelf” remains the same as it was in Mahoney. See id. § 1331(a). For

these reasons, the Court concludes that the statutory amendment has no bearing on

the Federal Defendants’ jurisdiction.

Kinsella next argues that he is excused from the normal standing

requirements because he is invoking a procedural right under NEPA. The Supreme

Court has indeed recognized that procedural rights are “special.” Lujan, 504 U.S.

at 572 n.7. But their special nature means only that “[t]he person who has been

accorded a procedural right to protect his concrete interests can assert that right

without meeting all the normal standards for redressability and immediacy.” Id.

(emphasis added). As the Supreme Court recently made clear, the requirements of

a concrete injury and traceability still apply: “Regardless of the redressability

showing we have tolerated in the procedural-rights context, we have never held a

litigant who asserts such a right is excused from demonstrating that it has a

‘concrete interest that is affected by the deprivation’ of the claimed right.” Dep’t

of Educ. v. Brown, 600 U.S. 551, 562 (2023) (quoting Summers v. Earth Island

Institute, 555 U.S. 488, 496–497 (2009)).

The plaintiffs in Brown challenged the procedures by which the Department

of Education promulgated its student-loan forgiveness plan. The Supreme Court

unanimously held that they “fail[ed] to establish that any that any injury they suffer

from not having their loans forgiven is fairly traceable to the Plan.” Id. at 560-61.

Thus, while Kinsella need not show that the Federal Defendants would have

reconsidered their decision, he must still show that they were responsible for the

onshore permits. As explained above, this he cannot do.

Finally, although Kinsella predominantly relies on PFA contamination, one

of his claims alleges that an alternate site for the export cable would have resulted

in substantially lower rates for consumers.2 This, too, suffers from a causation

problem. The rate agreement was approved by the New York Attorney General

and the New York Controller many years before the NEIS; the Federal Defendants

had no role in the agreement and no authority to change it.

2In prior iterations of his complaint, Kinsella referred to a potential decline

in the population of Atlantic cod. He has apparently abandoned that basis for

standing. In any event, the Court repeats its conclusion that that harm is entirely

speculative. See Kinsella, 2023 WL 3571300, at *3.

In sum, Kinsella has failed to allege an injury that is fairly traceable to the

Federal Defendants. As a result, his claims against those defendants must be

dismissed for lack of standing.

III. FAILURE TO STATE A CLAIM

Like the Federal Defendants, SFW moves to dismiss for lack of standing.

But unlike the Federal Defendants, SFW had a role in building the export cable

portion of the project. Therefore, Kinsella does not face the same obstacle to

demonstrating causation. The Court further concludes that he has adequately

alleged the other elements of standing. Although SFW argues that his theory of

increased PFAs contamination is speculative, it is sufficiently detailed to survive a

motion to dismiss. And while the redress he seeks is extreme—dismantling the

entire project—the Court cannot say that it is an impossibility.

Therefore, the Court turns to SFW’s motion to dismiss for failure to state a

claim. As noted, Kinsella asserts three claims of fraud against SFW. “The

elements of a fraud cause of action consist of a misrepresentation or a material

omission of fact which was false and known to be false by the defendant, made for

the purpose of inducing the other party to rely upon it, justifiable reliance of the

other party on the misrepresentation or material omission, and injury.” Pasternack

v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817, 827 (2016).

Many of the statements Kinsella cites were made in SFW’s submissions to

the Federal Defendants, not to him. “Under New York law, fraud claims based on

statements made to third parties are only actionable when the defendant made the

misrepresentation with the ‘intent that it be communicated to the plaintiff and that

the plaintiff rely on it’ and used the third party ‘as a conduit to relay the false

statement to plaintiff, who then relied on the misrepresentation to his detriment.’”

Red Mountain Med. Holdings, Inc. v. Brill, 563 F. Supp. 3d 159, 174 (S.D.N.Y.

2021) (quoting Pasternack, 27 N.Y.3d at 827-29). No allegation of the second

amended complaint supports an inference that SFW for intended the Federal

Defendants to relay those statements to Kinsella or for Kinsella to rely on them.

Kinsella does allege that SWF stated at a public meeting at which he was

present that “it would account for site-specific conditions, leave the area in better

condition, and (legally) obtain permits from state and federal agencies.” Second

Am. Compl. ¶ 263. But those statements fail the reliance element. Kinsella

alleges his own reliance in conclusory fashion but does not explain what he would

have done differently. His real theory of reliance is that the Federal Defendants

would not have approved the project had they known the truth. New York law is

clear that “such third-party reliance does not satisfy the reliance element of a fraud

claim.” Pasternack, 27 N.Y.3d 817, 827 (2016).

IV. CONCLUSION

For the foregoing reasons, the Federal Defendants’ motion to dismiss for

lack of standing is granted. SFW’s motion to dismiss for failure to state a claim is

likewise granted. Accordingly, the case is dismissed.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

September 23, 2024