Amicus Curiae Brief — Seafreeze Shoreside, Inc., et al., Petitioners v. Department of the Interior, et al.

Nos. 24-966 & 24-971

In the

Supreme Court of the United States

RESPONSIBLE OFFSHORE DEVELOPMENT

ALLIANCE, A D.C. NONPROFIT CORPORATION,

Petitioner,

v.

DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

SEAFREEZE SHORESIDE, INC., et al.,

Petitioners,

v.

DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

On Petitions For A Writ Of Certiorari To The

United States Court Of Appeals For The First Circuit

BRIEF OF GREEN OCEANS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

Lawrence S. Ebner

Counsel of Record

Capital A ppellate A dvocacy PLLC

1701 Pennsylvania Avenue, NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@capitalappellate.com

Counsel for Amicus Curiae

120358

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

INTEREST OF THE AMICUS CURIAE .................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT………………………………………………4

The Court Should Grant Review Because This Is a

“Major Questions” Case……………….…………………4

A.

The major questions doctrine precludes federal

agencies from making major policy decisions

without clear congressional authorization……..4

B.

Whether, and under what conditions, to

authorize construction and operation of

thousands of massive wind energy turbines on

the Outer Continental Shelf are major policy

questions……………………………………………..6

C.

OCSLA addresses the major policy questions

intertwined with development of offshore wind

energy by mandating that each of 12 statutorily

specified criteria is satisfied before an OCS wind

energy project can be approved………………….16

ii

D.

The major questions doctrine applies because

nothing in OCSLA authorizes BOEM to second

guess how Congress addressed the major policy

questions intertwined with development of

offshore wind energy……………………………...19

CONCLUSION…………………………………………..26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Biden v. Nebraska,

600 U.S. 477 (2023) .............................. . 4, 5, 21, 24

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) .............................................. 25

Nat’l Ass’n of Homebuilders v. Def. of Wildlife,

551 U.S. 644 (2007) .............................................. 19

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................ 19, 24

West Virginia v. EPA,

597 U.S. 697 (2022) .............................. 3, 4, 5, 6, 16

Statutes & Regulations

43 U.S.C. § 1332(2). ................................................... 17

43 U.S.C. § 1332(3). ................................................... 17

43 U.S.C. § 1337(p) ....................................... .16, 17, 25

43 U.S.C. § 1337(p)(1).......................................... 16, 25

43 U.S.C. § 1337(p)(1)(C) .......................................... .25

iv

43 U.S.C. § 1337(p)(4). .................................. 2, 3, 17-25

43 U.S.C. §§ 1337(p)(4)(A), (B), (C), (D), (F),

(I), (J)(ii)............................................................... .18

43 U.S.C. § 1337(p)(4)(I) ........................................... .21

30 C.F.R. § 585.100.................................................... 17

30 C.F.R. § 585.102................................................ 3, 23

Other Authorities

Allen Brooks, The Benefits of Offshore Wind Come at

a High Cost, available at

https://tinyurl.com/yeva6ssj.......................................11

Angel McCoy et al., Offshore Wind Market Report:

2024 Edition v, available at

https://tinyurl.com/bdare9y7........................................7

BOEM, Lease and Grant Information,

https://tinyurl.com/3jaj5pm7 (last visited March

17, 2025). ............................................................... .7

BOEM Record of Decision, Vineyard Wind 1 Offshore

Wind Energy Project Construction and Operations

Plan (May 10, 2021), available at

https://tinyurl.com/bdf62bse ............... .9, 10, 22, 23

v

DOI, Mem. from Solicitor to Secretary (M37059)

(Dec. 14, 2020), available at

https://tinyurl.com/532p7xbd ............................... 20

DOI, Mem. from the Principal Deputy Solicitor to the

Secretary (M-37067) (April 9, 2021), available at

https://tinyurl.com/mr3xvhp5. ....................... 22, 23

Elizabeth Quattrocki Knight, M.D., Ph.D., Blade

Debris Health Risks,

available at https://tinyurl.com/4afhu4c2............13

FACT SHEET: Biden Administration Jumpstarts

Offshore Wind Energy Projects to Create Jobs

(March 29, 2021), available at

https://tinyurl.com/fyw66sey................... .6, 7, 8, 21

Green Oceans, Offshore Wind and Human Health,

https://tinyurl.com/53vzk3wd...............................13

Green Oceans, Offshore Wind Energy as a threat to

National Security,

https://tinyurl.com/4ytb8nx6 ........................ .14, 15

Green Oceans, Offshore Wind & National Security,

https://tinyurl.com/2vcbjh9a. ............................... 14

Green Oceans, Offshore Wind & The Economy,

https://tinyurl.com/4retd9cn. ................................ .9

Green Oceans, Offshore Wind & the Environment,

https://tinyurl.com/mr2pk46u. ............................. 11

vi

Green Oceans, Offshore Wind, Fishing & Recreation,

https://tinyurl.com/ycxuku76. .............................. 14

Green Oceans, Offshore Wind Industry’s Impact on

Search and Rescue,

https://tinyurl.com/3m4r5nbr. ............................ 14

Green Oceans, Plastic Pollution,

https://tinyurl.com/5n9bpssr................................13

Green Oceans, The Ocean & Climate Change,

https://tinyurl.com/5ytm2vhv...............................11

Green Oceans, Underwater Noise Pollution,

https://tinyurl.com/4ydz3usf. ............................... 12

Lisa Quattrocki Knight and Bill Thompson,

Commentary: Whales are Dying —

Is there a link to offshore wind? (Feb. 1, 2023)

available at https://tinyurl.com/2y4xsw5y..........12

Miles Bidwell, The Myth of Offshore Wind,

available at https://tinyurl.com/283z5u2r............11

Presidential Memorandum, Temporary Withdrawal

of All Areas on the Outer Continental Shelf from

Offshore Wind Leasing and Review of the Federal

Government’s Leasing and Permitting Practices

for Wind Projects (Jan. 20, 2025), available at

https://tinyurl.com/mtzrj64u. ....................... 8, 9, 10

vii

U.S. Dep’t of Energy, Update on the Efforts of the

Wind Turbine Radar Interference Mitigation

Working Group (Feb. 2024),

available at https://tinyurl.com/yc7rxnb8 .......... .15

1

INTEREST OF THE AMICUS CURIAE 1

Green Oceans is a nonprofit, nonpartisan,

grassroots organization dedicated to preserving the

health of the ocean and all the life that it sustains.

With the support and expertise of individuals from

many professional and occupational backgrounds,

Green Oceans seeks to protect precious natural

resources from the risks of ocean industrialization—

especially the multifarious harms caused by

construction and operation of massive offshore wind

energy turbines and related infrastructure. Green

Oceans collaborates regularly with a nationwide

network of environmental groups—from Maine to

North Carolina and across to the West Coast—all

similarly opposed to industrialization of the nation’s

coastal waters with wind energy.

To carry out its mission, Green Oceans

disseminates scientific and other information. Its

website, editorials, and informative social media posts

help educate thousands of followers on a weekly basis.

Green Oceans also engages in advocacy activities,

Petitioners’ and Respondents’ counsel were provided timely

notice of this brief in accordance with Supreme Court Rule 37.2.

No counsel for a party authored this brief in whole or part, and

no party or counsel other than the amicus curiae and its counsel

made a monetary contribution intended to fund preparation or

submission of this brief.

1

2

including, as here, participation in the judicial

process. See green-oceans.org.

Green Oceans’ highest priority concern is

protecting 1,400 square miles of ocean waters off

Rhode Island and Massachusetts from ongoing and

planned construction of hundreds of gigantic wind

turbines on the Outer Continental Shelf. The federally

approved wind energy project at issue in this appeal,

Vineyard Wind 1, will harm the marine environment,

imperil human health and safety, threaten national

security, and virtually destroy the commercial fishing

industry, while doing little to mitigate climate change.

SUMMARY OF ARGUMENT

The Outer Continental Shelf Lands Act (OCSLA),

as amended by the Energy Policy Act of 2005,

embodies major policy decisions that Congress made

to facilitate offshore wind energy development on the

Outer Continental Shelf (“OCS”) while seeking to

prevent or mitigate a multitude of real-world

economic, environmental, safety, national security,

and other harms and risks created by construction and

operation of thousands of enormous wind turbines and

related infrastructure. More specifically, OCSLA

requires that the Department of the Interior (DOI),

through the Bureau of Ocean Energy Management

(BOEM), “shall ensure” that each of 12 statutorily

specified protective criteria is satisfied before an OCS

wind energy project can be approved. See 43 U.S.C.

§ 1337(p)(4).

3

As part of its anti-fossil fuel agenda, the Biden

administration sought to aggressively promote and

approve nationwide OCS wind energy, beginning with

1,400 square miles off the New England coast. To

facilitate and expedite these efforts, BOEM has

reinterpreted its statutory responsibilities under

§ 1337(p)(4) in order to afford itself “wide discretion”

to “weigh” and achieve a “rational balance” among the

12 mandatory criteria, which BOEM has conveniently

attempted to transform into mere “goals.” BOEM’s

word play, reflected in its recently revised regulation,

30 C.F.R. § 585.102, titled “What are BOEM’s

responsibilities under this part?” violates OCSLA’s

unequivocal statutory language and defies the

legislative history underlying its adoption.

As this Court has explained in West Virginia v.

EPA, 597 U.S. 697 (2022), and other cases, the major

questions doctrine precludes federal regulatory

agencies from making major policy decisions without

clear congressional authorization. The major

questions doctrine applies here because BOEM, to

arrogate virtually unfettered power to itself,

essentially has second guessed and revised the major

policy decisions that Congress incorporated into the 12

mandatory project-approval criteria established by

§ 1337(p)(4).

The Court should grant certiorari because this is a

major questions case with vast potential consequences

for the public and the environment. BOEM’s seizure of

expansive regulatory power over how electricity is

generated affects tens of millions of Americans who

4

will be forced to incur the high cost of often unreliable

and minimally beneficial offshore wind energy. It also

threatens the existence of the commercial fishing

industry, irreparably harms the ocean environment,

and creates grave national security and safety risks.

ARGUMENT

The Court Should Grant Review Because

This Is a “Major Questions” Case

A. The major questions doctrine precludes

federal agencies from making major policy

decisions without clear congressional

authorization

The major questions doctrine is a canon of

statutory construction. It “refers to an identifiable

body of law that has developed over a series of

significant cases all addressing a particular and

recurring problem: agencies asserting highly

consequential power beyond what Congress could

reasonably be understood to have granted.” West

Virginia v. EPA, 597 U.S. at 724; see also Biden v.

Nebraska, 600 U.S. 477, 504 (2023) (“As we explained

in [West Virginia], while the major questions ‘label’

may be relatively recent, it refers to ‘an identifiable

body of law that has developed over a series of

significant cases’ spanning decades.”) (quoting West

Virginia, 597 U.S. at 724).

Under the major questions doctrine, courts

presume that Congress intends to make

major policy decisions itself, not leave

5

those decisions to agencies. . . . To convince

[a court] otherwise, something more than

a merely plausible textual basis for the

agency action is necessary. The agency

instead must point to clear congressional

authorization for the power it claims.

West Virginia, 597 U.S. at 723 (internal citations and

quotation marks omitted); see also id. at 716 (“[C]ourts

expect Congress to speak clearly if it wishes to assign

to an agency decisions of vast economic and political

significance.”) (internal quotation marks omitted); id.

at 737 (“The major questions doctrine works . . . to

protect the Constitution’s separation of powers.”)

(Gorsuch, J., concurring).

The major questions doctrine “emphasize[s] the

importance of context when a court interprets a

delegation to an administrative agency.” Nebraska,

600 U.S. at 508 (Barrett, J., concurring). Context is

“relevant to the major questions doctrine [because it]

is also relevant to interpreting the scope of a

delegation.” Id. at 513. Importantly, “[c]ontext is not

found exclusively within the four corners of a statute.”

Id. at 511 (internal quotation marks omitted).

“[C]larity may come from specific words in the statute,

but context can also do the trick. Surrounding

circumstances, whether contained within the

statutory scheme or external to it, can narrow or

broaden the scope of a delegation to an agency.” Id. at

514.

6

B. Whether, and under what conditions, to

authorize construction and operation of

thousands of massive wind energy turbines

on the Outer Continental Shelf are major

policy questions

This Court held that West Virginia was “a major

questions case” because it involved Congress’

supposed delegation to EPA of policymaking authority

under the Clean Air Act to “substantially restructure

the American energy market.” 597 U.S. at 724.

Similarly, the supposed statutory delegation at issue

here—policymaking authority to restructure how

electricity is produced for tens of millions of Americans

on the Atlantic, Pacific, and Gulf coasts—makes this a

major questions case. Whether, and under what

conditions, to authorize commercial wind energy

development on the Outer Continental Shelf—both

nationally and for specific projects—are major policy

questions that implicate significant economic,

environmental, safety, national security, and other

concerns.

1. The reckless OCS wind energy expansion

program initiated under the Biden administration is

national in scope. It will encompass the Atlantic,

Pacific, and Gulf coasts and “spawn new supply chains

that stretch into America’s heartland.” 2 As the

FACT SHEET: Biden Administration Jumpstarts Offshore

Wind Energy Projects to Create Jobs (March 29, 2021), available

2

7

certiorari petitions explain, “[i]n a rush to replace

fossil fuels as this nation’s primary source of

electricity, the federal government launched an

aggressive, nationwide program to approve 30

gigawatts (GW) of offshore wind energy projects across

all three American coasts by 2030.” Seafreeze Pet. at

1. 3 According to the Biden administration’s “fact

sheet,” “[a]chieving this target also will unlock a

pathway to 110 GW by 2050.” 4 “This offshore wind

program will cover millions of acres of federal

submerged lands with thousands of turbines,

thousands of miles of underwater cables connecting

the projects to the electric grid, and thousands of acres

of underwater construction, including massive

boulders and concrete mattresses.” Responsible

Offshore Development Alliance (“RODA”) Pet. at 9-10.

“To date, 39 commercial wind leases have been

granted on all three coasts.” Seafreeze Pet. at 14. 5

“[A]pproximately 35 offshore wind projects are in

various stages of approval or construction along the

at https://tinyurl.com/fyw66sey; see also Angel McCoy et al.,

Offshore Wind Market Report: 2024 Edition v (map of “U.S.

offshore wind energy pipeline activity”), available at

https://tinyurl.com/bdare9y7.

3 A gigawatt is equivalent to 1 billion watts.

4 Biden FACT SHEET, supra.

5 See BOEM, Lease and Grant Information (“table of leases and

grants that BOEM has executed since the inception of its

renewable energy program”), https://tinyurl.com/3jaj5pm7 (last

visited March 17, 2025).

8

Atlantic coast.” RODA Pet. at 6. The project at issue

in this litigation—Vineyard Wind 1—“was the first

offshore wind energy project approved by the Interior

Department.” Id. at 5. Each of the 42 alreadyconstructed 80-story Vineyard Wind turbines “is

almost three times the size of the Statue of Liberty,”

id. at 20, and taller than the Prudential and Hancock

buildings in Boston. These gargantuan turbines,

which are pile-driven into the Outer Continental Shelf

off the Rhode Island and Massachusetts coasts, are

visible for 30 miles, within easy sight of coastal towns

frequented by millions of visitors from all over the

country for their scenic beauty and beaches.

2. The OCS wind energy program unavoidably

implicates a constellation of serious economic,

environmental, safety, national security, and other

concerns. The potential and actual adverse impacts of

BOEM’s “bold,” “ambitious,” “rapid offshore wind

deployment,” 6 are so obvious and troubling, President

Trump expressly recognized them in a Presidential

Memorandum issued on the same day he was

inaugurated as the nation’s 47th President. The

Presidential Memorandum explains that the leasing

and permitting of offshore wind projects “may lead to

grave harm—including negative impacts on

navigational

safety

interests,

transportation

interests, national security interests, commercial

6 Biden FACT SHEET, supra.

9

interests, and marine mammals” (emphasis added). 7

In light of “the importance of marine life, impacts on

ocean currents and wind patterns, effects on energy

costs for Americans—especially those who can least

afford it—and to ensure that the United States is able

to maintain a robust fishing industry for future

generations,” the President ordered “a comprehensive

assessment and review of Federal wind leasing and

permitting practices.” Id.

The Green Oceans website (green-oceans.org)

highlights many of these grave concerns, which

underlie, and are inextricably intertwined with, major

policy decisions regarding whether OCS wind energy

development should be authorized, and if so, under

what conditions. These concerns include the following:

● Economic concerns. Offshore wind energy is

devasting to the commercial fishing industry and

extremely costly to consumers. See Green Oceans,

Offshore Wind & The Economy. 8

For example, BOEM’s Record of Decision (“ROD”)

for the Vineyard Wind project confirms that the

impact of the planned actions on commercial fisheries

are “Major.” ROD at 16 (Table 3-2); see also id. at 39

7 Presidential Memorandum, Temporary Withdrawal of All Areas

on the Outer Continental Shelf from Offshore Wind Leasing and

Review of the Federal Government’s Leasing and Permitting

Practices for Wind Projects (Jan. 20, 2025), available at

https://tinyurl.com/mtzrj64u; see Seafreeze Pet. at 13-14.

8 https://tinyurl.com/4retd9cn.

10

(“[I]t is anticipated that there will be negative

economic impacts to commercial fisheries.”). 9 Words

like “major” and “negative” do not begin to tell the

story: BOEM concedes that “due to the placement of

the [Vineyard Wind] turbines it is likely that the

entire 75,614 acre area will be abandoned by

commercial fisheries due to difficulties with

navigation.” Id. (emphasis added). As the RODA

certiorari petition explains, “construction of turbines,

underwater cables, and other obstacles has rendered

fishing in [the Vineyard Wind lease] area nearly

impossible and perilous,” and “[t]hose who can still

access parts of the area are experiencing a dramatic

decline in their catch . . . due to the altered marine

environment.” RODA Pet. at 14-15; see also Seafreeze

Pet. at 8. Multiply this obliteration of an historic and

essential New England industry by dozens of OCS

wind energy leases already granted or planned on all

three coasts, and “the devasting impact [OCS wind

energy] projects will have on the nation’s commercial

fishing industry” will be vast. RODA Pet. at 14.

Because offshore wind is the most expensive form

of electricity, it also is economically detrimental to

consumers—“especially those who can least afford it.”

Presidential Memorandum, supra. The transmission

and distribution of electricity from OCS wind turbines

to homes and businesses is extraordinarily costly. This

BOEM Record of Decision, Vineyard Wind 1 Offshore Wind

Energy Project Construction and Operations Plan (May 10,

2021), available at https://tinyurl.com/bdf62bse.

9

11

is partially due to the high cost of maintaining as well

as constructing thousands of miles of underwater

cables and related infrastructure to bring electricity

ashore. And because wind energy is intermittent—a

turbine typically produces energy only about 40% of

the time, or about 9 to 10 hours per day—consumers

must incur the additional cost of a backup source of

electric power, such as from traditional fossil fuel

power plants. See Allen Brooks, The Benefits of

Offshore Wind Come at a High Cost; 10 Miles Bidwell,

The Myth of Offshore Wind. 11

● Environmental concerns. Healthy oceans

combat climate change; offshore wind energy does not.

The countless adverse environmental impacts of OCS

wind energy are profound. See Green Oceans, The

Ocean & Climate Change; 12 Green Oceans, Offshore

Wind & the Environment. 13 Construction and

operation of OCS wind energy turbines and related

infrastructure threaten to pollute enormous sections

of pristine ocean, thereby destroying or harming a

multitude of fish habitats and other sea life. Millions

of gallons of fuels, coolants and lubricants could spill

or leak into the ocean due to faulty equipment or major

storms. Offshore wind substations dump heated

chlorinated water into the ocean, killing fish larvae

10 Available at https://tinyurl.com/yeva6ssj.

11 Available at https://tinyurl.com/283z5u2r.

12 https://tinyurl.com/5ytm2vhv.

13 https://tinyurl.com/mr2pk46u.

12

and zooplankton. Trenching and laying the

underwater cables for transmitting power from the

turbines creates sediment plumes that choke sea life.

And once installed, these high-voltage cables produce

electromagnetic fields that could potentially cause

birth defects in lobsters and other forms of sea life, and

disrupt the abilities of sharks and many other species

that use the earth’s magnetic fields to orient, navigate,

and find prey to survive.

There also are the well-publicized lethal effects of

offshore wind energy construction on whales

(including the endangered North Atlantic right whale)

and other sea mammals. One theory is that the

thunderous pile driving and seismic surveys essential

for offshore wind energy construction deafen, confuse,

and/or alarm whales, causing them to become

disoriented and collide with ships or become stranded.

See Green Oceans, Underwater Noise Pollution. 14

Recognizing the threat to whales, the National

Oceanic and Atmospheric Administration (NOAA) has

granted offshore wind developers thousands of

“incidental take authorizations,” i.e., permission to

harm or harass whales. See Lisa Quattrocki Knight,

and Bill Thompson, Commentary: Whales are Dying

— Is there a link to offshore wind? (Feb. 1, 2023); 15 see

also Seafreeze Pet. at 13 (OCS wind energy projects

14 https://tinyurl.com/4ydz3usf.

15 Available at https://tinyurl.com/2y4xsw5y. The authors are co-

founders and President and Vice President of Green Oceans.

13

“will affect endangered species, especially species that

use sound to communicate like the critically

endangered

North

Atlantic

right

whale

. . . which inhabits the Vineyard Wind 1 project area”).

● Safety concerns. OCS wind turbines are

enormous. Each of the three blades on an OCS wind

turbine is about 350 feet in length and weighs

approximately 70 tons. Blade failure is a well-known

risk. When blades fall off and break apart, they release

microplastics that are transported long distances in

ocean currents and are potentially toxic to humans as

well as marine life. See Elizabeth Quattrocki Knight,

M.D., Ph.D., Blade Debris Health Risks; 16 Green

Oceans, Offshore Wind and Human Health; 17 Green

Oceans, Plastic Pollution. 18 As the certiorari petitions

discuss, in July 2024 one of the newly installed

Vineyard Wind turbine blades broke apart and

scattered thousands of pounds of plastic and other

debris that washed ashore on Massachusetts, Rhode

Island, and Long Island beaches. See RODA Pet. at 2021; Seafreeze Pet. at 15.

OCS wind turbines also create dangerous

navigation hazards and obstacles for military,

commercial, emergency, and recreational vessels.

16 Available at https://tinyurl.com/4afhu4c2.

17 https://tinyurl.com/53vzk3wd.

18 https://tinyurl.com/5n9bpssr.

14

See Green Oceans, Offshore Wind Energy as a threat

to National Security (discussing navigation safety

risks); 19 Green Oceans, Offshore Wind Industry’s

Impact on Search and Rescue; 20 Green Oceans,

Offshore Wind, Fishing & Recreation. 21 As noted

above, President Trump’s Memorandum recognizing

the grave harms of offshore wind energy development

specifically cites the “negative impacts on

navigational safety interests.” Presidential Action

Memorandum, supra.

● National Security. There also are alarming

reasons why “[o]ffshore wind projects pose a serious

threat to our national defense.” Green Oceans,

Offshore Wind Energy as a Threat to National

Security, supra. One reason is wind turbine

interference with military radar and sonar, such as

the Cape Cod Space Force Station’s early missile

detection system—the only one of its kind on the East

Coast. See id.; see also Green Oceans, Offshore Wind

& National Security. 22 A recent U.S. Department of

Energy Report to Congress explains that

[a]s wind turbines continue to expand both

in size and number, they can interfere with

19 https://tinyurl.com/4ytb8nx6.

20 https://tinyurl.com/3m4r5nbr.

21 https://tinyurl.com/ycxuku76.

22 https://tinyurl.com/2vcbjh9a.

15

radar systems. The clutter created by wind

turbines typically increases the false alarm

detection rate of a radar. To suppress this,

the radar system will raise the threshold

for what is considered a detection and, as a

result, may miss actual targets.

U.S. Dep’t of Energy, Update on the Efforts of the

Wind Turbine Radar Interference Mitigation Working

Group (Feb. 2024). 23 The affected radar systems

include those that “support air traffic control and

flight safety, severe weather forecasting and

warnings, coastal sea-surface and maritime

surveillance, oceanographic measurements, and

homeland and national defense missions.” Id.

Further, “[t]o date, no mitigation technology has been

able to fully restore the technical performance of

impacted radars.” Offshore Wind Energy as a threat

to National Security, supra.

Another major concern is that “[g]rid instability

and insufficiency pose a significant national security

risk because electricity underpins essential

infrastructure . . . Any significant prolonged outage

could leave the government and emergency services

unable to respond . . . and would undermine the

military.” Id. The prospect of offshore wind energy

outages is real, especially given the threat of

23 Available at https://tinyurl.com/yc7rxnb8.

16

cybersecurity attacks by the nation’s high-tech

adversaries such as China and Russia.

These economic, environmental, safety, and

national security concerns explain why authorization

of OCS wind energy development, both nationally and

on a project-specific basis, implicate major policy

questions.

C. OCSLA addresses the major policy questions

intertwined with development of offshore

wind energy by mandating that each of 12

statutorily specified criteria is satisfied

before an OCS wind energy project can be

approved

“Agencies have only those powers given to them by

Congress . . . .” West Virginia, 597 U.S. at 724. The

OCSLA provision at issue in this litigation, section

8(p), 43 U.S.C. § 1337(p), was added to the statute by

the Energy Policy Act of 2005. It authorizes the

Secretary of the Interior (through BOEM) to “grant a

lease, easement, or right-of-way on the outer

Continental Shelf for activities . . . that produce or

support . . . transmission of energy from sources other

than oil and gas.” Id. §§ 1337(p)(1) & (p)(1)(C). In

other words, § 1337(p) is the source of BOEM’s

“authority to manage the development of energy on

the [OCS] from sources other than oil and gas,

including renewable energy through the issuance of

leases . . . that produce or support the production,

transportation, or transmission of energy.” 30 C.F.R.

17

§ 585.100 (Authority); see also Pet.App. 7a (First

Circuit description of OCSLA). 24

Section 1337(p) not only authorizes BOEM to

approve OCS wind energy development, but also

expressly limits BOEM’s discretion to do so, both in

general and as to each specific project. OCSLA’s

“Congressional declaration of policy” states in part

that “the outer Continental Shelf is a vital national

resource reserve held by the Federal Government for

the public, which should be made available for

expeditious and orderly development, subject to

environmental safeguards,” id. § 1332(3) (emphasis

added), and “in such a manner that . . . the right to

navigation and fishing . . . shall not be affected.” Id.

§ 1332(2) (emphasis added). Consistent with this

policy, Congress in section 8(p)(4), 43 U.S.C.

§ 1337(p)(4), titled “Requirements,” mandated that

the “Secretary shall ensure that any activity under

this subsection is carried out in a manner that

provides for” 12 specified criteria (emphasis added).

More specifically, § 1337(p)(4) requires the

Secretary, i.e. BOEM, to ensure that an OCS wind

energy project provides for, inter alia,

•

“safety”

24 Both certiorari petitions have reproduced and paginated the

First Circuit’s opinion in the same manner.

18

•

“protection of the environment,” including

“prevention of waste” and “conservation of

natural resources on the outer Continental

Shelf”;

•

“protection of natural security interests of the

United States”; and

•

“prevention of interference with reasonable

uses . . . of the exclusive economic zone [and] the

high seas,” and “consideration of . . . any other

use of the sea or seabed, including use for a

fishery, a sealane . . . or navigation.”

Id. §§ 1337(p)(4)(A), (B), (C), (D), (F), (I), (J)(ii).

These and the other statutory prerequisites

specified in § 1337(p)(4) for BOEM approval of each

and every OCS wind energy project are regulatory

guardrails. They embody the major policy decisions

that Congress made when it decided to authorize

offshore wind energy development, but only if each of

the § 1337(p)(4) is met for each project. These

mandatory approval criteria expressly reflect the

economic, environmental, safety, national security,

and other concerns intertwined with those major

policy decisions.

19

D. The major questions doctrine applies because

nothing in OCSLA authorizes BOEM to

second guess how Congress addressed the

major policy questions intertwined with

development of offshore wind energy

“An agency has no power to ‘tailor’ legislation to

bureaucratic policy goals by rewriting unambiguous

statutory terms.” Util. Air Regul. Grp. v. EPA, 573

U.S. 302, 325 (2014). But this is exactly what BOEM

has done in connection with the § 1337(p)(4) criteria

for approval of OCS wind energy projects. Because

these mandatory criteria embody Congress’ major

policy decisions regarding the conditions under which

OCS wind energy projects can be approved—and

nothing in § 1337(p)(4) or elsewhere in OCSLA

authorizes BOEM to alter them—the major questions

doctrine precludes BOEM’s attempt to assign itself

practically unfettered discretion to approve whatever

OCS wind projects it chooses, no matter what the

consequences to the public, industry, or the ocean

environment.

1. The mandatory nature of § 1337(p)(4)’s plain

language is indisputable: BOEM “shall ensure” that

the project-approval criteria are satisfied. The First

Circuit agreed that “the OCSLA criteria are

‘mandatory.’” Pet.App. 44a; see Nat’l Ass’n of

Homebuilders v. Def. of Wildlife, 551 U.S. 644, 661

(2007) (“By its terms, the statutory language is

mandatory . . . . Congress’ use of a mandatory ‘shall’

. . . impose[s] discretionless obligations.”) (cleaned up).

20

Although resort to the legislative history of

§ 1337(p)(4) is unnecessary, it confirms congressional

intent. As discussed in a December 2020 legal

memorandum from the DOI Solicitor to the Secretary

of the Interior, § 1337(p)(4) (referred to as subsection

8(p)(4) in the memorandum), as originally proposed by

DOI, merely identified “factors” for the Secretary to

“consider” when deciding whether to grant a lease for

an OCS project. Dec. 2020 Mem. at 7. 25 But

[i]n the final statutory language, those

factors . . . are instead written as

requirements that the Secretary must

ensure are met by any activity approved

under subsection 8(p)(4). The textual

changes between the amendment as

proposed and as adopted reveal a shift

from mere considerations to affirmative

requirements with which all approvals

must comply.

Id. (emphasis added). Although the Biden

administration, to advance its own agenda, rescinded

the December 2020 legal memorandum, that does not

25 DOI, Mem. from Solicitor to Secretary (M37059) (Dec. 14,

2020), available at https://tinyurl.com/532p7xbd.

21

change either the statute’s legislative history or

congressional intent. 26

2. As discussed above, “context,” including

“surrounding circumstances,” is important to

application of the major questions doctrine. See Biden

v. Nebraska, 600 U.S. at 508, 514 (Barrett, J.,

concurring). “Seen in this light, the major questions

doctrine is a tool for discerning—not departing from—

the text’s most natural interpretation.” Id. at 508.

Here, application of the major questions doctrine to

BOEM’s elastic interpretation of its responsibilities

under § 1337(p)(4) is informed by the surrounding

circumstances. They demonstrate that BOEM has

reinterpreted § 1337(p)(4)—and in so doing, revised

the congressional policy decisions that this critical

provision reflects—for the purpose of arrogating to

itself the regulatory power and discretion needed to

fulfill a (now former) presidential administration’s

OCS energy-related political agenda.

To facilitate the Biden administration’s “bold,”

“ambitious,” and “rapid” OCS wind energy program, 27

DOI’s Principal Deputy Solicitor, in an April 9, 2021

memorandum to the new Secretary, withdrew his

The Solicitor’s memorandum focused on BOEM’s statutory

duties under § 1337(p)(4)(I) in connection with ensuring

“prevention of interference with reasonable uses” of the ocean,

e.g. commercial fishing, but his opinion emphasized the

mandatory nature of all of the § 1337(p)(4) approval criteria.

26

27 Biden FACT SHEET, supra.

22

predecessor’s December 14, 2020 memorandum, and

replaced it with a self-serving reinterpretation of

§ 1337(p)(4). According to this new and expedient legal

opinion, § 1337(p)(4) merely imposes “a general

requirement that an agency accomplish one or more

broadly defined goals.” April 2021 Mem. at 1. 28 More

specifically, the April 2021 memorandum asserts that

§ 1337(p)(4) “require[s] only that the Secretary strike

a rational balance between Congress’s enumerated

goals,” and that “[i]n making this determination, the

Secretary retains wide discretion to weigh those goals

as an application of her technical expertise and policy

judgment.” Id. at 2 (emphasis added). According to the

memorandum, § 1337(p)(4) “does not require the

Secretary to ensure that the goals are achieved to a

particular degree.” Id. at 5 (emphasis added).

The following month, May 2021, BOEM issued its

Record of Decision (ROD) for the Vineyard Wind

project, the first such OCS project to be approved. The

ROD quotes from the Biden administration’s April

2021 DOI legal memorandum and recites its

assertions about BOEM’s supposed “wide discretion”

under § 1337(p)(4) “to determine the appropriate

balance between two or more goals that conflict or

28

DOI, Mem. from the Principal

the Secretary (M-37067) (April 9,

https://tinyurl.com/mr3xvhp5.

Deputy Solicitor to

2021), available at

23

otherwise are in tension (emphasis added);” 29 see also

ROD, App. B (Compliance Review) (same).

Along the same lines, BOEM subsequently revised

the regulation that sets forth BOEM’s self-description

of its duties under § 1337(p)(4). Between October

2011 and July 2024, 30 C.F.R. § 585.102 (“What are

BOEM’s responsibilities under this part?”), closely

tracked the language of § 1337(p)(4). The regulation

began by stating that “BOEM will ensure that any

activities authorized in this part are carried out in a

manner that provides for . . . [listing the 12 approval

criteria].”But effective July 14, 2024, § 585.102 now

begins as follows: “BOEM will ensure that any

activities authorized in this part are carried out in a

manner that provides for and reaches a rational

balance among the following goals to the extent they

conflict or are otherwise in tension, none of which

inherently outweighs or supplants any other”

(emphasis added). The revised regulation’s assertion

that the § 1337(p)(4) approval criteria may “conflict”

or be “in tension” with each other is just a pretext for

BOEM’s supposed authority to “balance” them rather

than ensure that each is satisfied.

In short, BOEM, with the assistance of the DOI

Solicitor’s office, has transformed the mandatory

project-approval criteria established by § 1337(p)(4)

into “goals.” And BOEM has arrogated to itself “wide

discretion” and “policy judgment” to achieve whatever

29 ROD at 9.

24

“rational balance” of those goals it needs to contrive in

order to approve an OCS project such as Vineyard

Wind. The major questions doctrine precludes BOEM

from performing this bureaucratic sleight of hand and

revising the major policy decisions that Congress

addressed by enacting § 1337(p)(4).

“Context also includes common sense,” Nebraska,

600 U.S. at 512 (Barrett, J., concurring), and common

sense confirms that BOEM, to serve its own purposes,

essentially has rewritten the unequivocal text of §

1337(p)(4). Despite the huge expanse of the Atlantic

Outer Continental Shelf, BOEM has granted leases

and approved wind energy projects that obstruct

prime commercial fishing areas, and also trigger

serious environmental, safety, and national security

concerns. This supposed “rational” balance of

OCSLA’s “goals” not only reflects BOEM’s own policy

priorities, but also directly conflicts with the statutory

requirement that BOEM “shall ensure” that each of

the 12 criteria for approval of an OCS wind energy

project is satisfied.

“[A]n initiative of this scope, cost, and political

salience is not the type Congress lightly delegates to

an agency.” Nebraska, 600 U.S. at 520 (Barrett, J.

concurring). Where, as here, “an agency claims to

discover in a long-extant statute an unheralded power

to regulate a significant portion of the American

economy [the Court] typically greet[s] its

announcement with a measure of skepticism” (quoting

Util. Air Regul. Grp., 573 U.S. at 324) (internal

citation and quotation marks omitted). Such

25

skepticism is warranted here, especially now that the

Court in Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024), has overruled Chevron deference.

3. The First Circuit panel’s discussion as to why

“BOEM must have ‘discretion’ in considering whether

each statutory criterion is satisfied” is a red herring.

Pet.App. 44a-45a. The issue here is not whether a

specific criterion is satisfied for a particular project,

but instead, whether, as BOEM contends, it has broad

discretion to balance the criteria as it sees fit, rather

than ensure that each is satisfied. The First Circuit

panel, like the district court, erroneously asserted

that “BOEM must ‘balance’ the statutory mandate to

develop energy projects on the Outer Continental

Shelf with the twelve statutory criteria for which it

must provide.” Id. at 45a. Even assuming that OCSLA

includes a “mandate” to develop OCS wind energy,

OCSLA neither expressly nor impliedly requires, or

authorizes, such balancing, much less whatever

BOEM conveniently considers to be a “rational

balance.”

Section 1337(p) is straightforward: “The Secretary

. . . may grant a lease.” 43 U.S.C. § 1337(p)(1)

(emphasis added). But the Secretary “shall ensure

that any activity” under § 1337(p), i.e., granting a

lease for an OCS wind energy project, “is carried out

in a manner that provides for” each of the 12 criteria.

Id. § 1337(p)(4) (emphasis added). Each criterion must

be met. There is no hint in the statute that Congress

intended that BOEM can or should balance the 12

criteria against each other, or balance them

26

collectively or individually against the statutory

objective of supporting production of offshore wind

energy. If Congress wanted any such balancing, the

statute would have said so. Instead, Congress

addressed the major policy questions of whether, and

under what conditions, to authorize OCS wind energy

development by allowing approval of a project only if

it satisfies each of the 12 criteria, including those that

expressly take into account economic, environmental,

safety, and national security concerns.

BOEM’s attempt to reinterpret the statute so that it

can make its own politically expedient policy

judgments as to what conditions should be satisfied

for approval of OCS wind energy projects is barred by

the major questions doctrine. The Court should grant

certiorari and so hold.

CONCLUSION

The petitions for a writ of certiorari should be

granted.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

CAPITAL APPELLATE ADVOCACY PLLC

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@capitalappellate.com

April 2025