From MasterResource

SI KINSELLA vs. SOUTH FORK WIND, BOEM, et al.

By Sherri Lange — May 10, 2023

Ed. Note: Si Kinsella is a resident of Suffolk County New York, a seaside community that is a staging area for South Fork Wind, a 132 MW, 15-turbine project located 35 miles offshore. He is representing himself on behalf of his neighbors. While not asking for damages, Kinsella is suing to ensure that the ecological protocols are met and that the project’s economics are fairly represented. Kinsella is asking Injunctive Relief: Disclose, Dismantle, Remove, and Restore.

“Mr. Kinsella repeats that the case is not about the construction methods of South West Wind, but rather is about the failure of BOEM (Bureau of Ocean Energy Management), to uphold legal principles of environmental review and oversight, water quality assurance, due process, and compliance with the National Environmental Policy Act (NEPA) and Freedom of Information Act (FOIA). Relying on fraudulent materials, the permit was granted full sway.”

Citing fraudulent representations and permits to South Fork Wind by the Bureau of Ocean Energy Management (BOEM), plaintiff Si Kinsella states:

Disturbingly, the case against BOEM concerning South Fork Wind proved beyond a reasonable doubt that BOEM acted in the interests of a private developer against U.S. interests.  It appears the administration has handed over management of U.S. offshore resources on the U.S. Outer Continental Shelf to a law firm representing foreign offshore wind developers.

I last wrote about Si Kinsella’s now well-known legal challenge to South Fork Wind:

“Mr. Kinsella (profile in Appendix A) claims egregious levels of disregard for process, legalities, and public health and environmental concerns. Defendants at District Court, District of Columbia are the Department of the Interior, and Honorable Deb Haaland, US Bureau of Ocean Energy Management, and US Environmental Protection Agency, and Honorable Michael S. Regan.”

Even more egregious levels of disregard for legalities and public health and environmental concerns are now evident. More hands appear in the cookie jar.

 Si Kinsella’s recent message to supporters:

A storm is brewing in Washington, D.C. It concerns the Bureau of Ocean Energy Management (BOEM)^[1] and its environmental review of South Fork Wind.  Since my last South Fork Wind update (November 16, 2022), the nature and extent of BOEM’s fraudulent representations have been receiving more attention, especially by the U.S. Court of Appeals for the D.C. Circuit. 

Questions are being asked.  Why did BOEM fraudulently represent groundwater quality as “good” and conceal harmful PFAS contamination; materially misstate the project’s socioeconomic impact by excluding the single largest financial item, the cost of $2 billion; falsely state population-level effects on Atlantic Cod; leave out a viable alternative (Sunrise Wind), that intervenors did discuss during the state review; ignore procurement irregularities; and rely on an inaccurate purpose and needs statement?  BOEM acknowledged receiving detailed information on these issues but failed to address them and did not require South Fork Wind to correct the inconsistencies.  Instead, BOEM falsified the review to cover up the project’s many failings.  The case against BOEM is fraud. 

The U.S. Court of Appeals for the D.C. Circuit is arguably the second highest court in the land (second only to the U.S. Supreme Court).  Before the Court is a Petition for a Writ of Mandamus, asking the Court to issue an order mandating that the lower court reverse a decision.  If the Court of Appeals believes a Petition lacks merit, it may deny it without an answer.  However, in this case,^[2] the Court ordered BOEM and South Fork Wind to respond to the Petition (which they did on March 27, 2023).

The D.C. Circuit must give a Petition for a Writ of Mandamus preference over ordinary civil cases.  The last time the D.C. Circuit heard such a petition was in 2020, regarding Michael T. Flynn making false statements to FBI agents (denied)^[3] and former Secretary of State Hillary Rodham Clinton involving a deposition request (granted).^[4]

 Today’s required reading is the Reply to Federal Defendants’ Response to the Petition (attached).  The Reply is not long.  It is worth reading because it provides context (you’ll understand when you read it).  Note that the Petition uses Federal Defendants, principally BOEM but includes the EPA and Department of the Interior.

 Exhibits are available at www.oswSouthFork.info/boem. 

Please see the Organization Chart, “Org Chart” (attached).  It shows the hierarchy of those responsible for approving and overseeing U.S. history’s most significant construction program in largely undeveloped environments on the Outer Continental Shelf (up to 45.3 million acres, Exhibit 5).  It shows that Deputy Secretary of the Department of the Interior, Tommy Beaudreau, earned $2.4 million in partnership income at Latham & Watkins (reported in 2020).  According to Mr. Beaudreau’s Nominations Report (2020), he received compensation from many offshore wind companies, including Ørsted and DE Shaw. 

DE Shaw owned South Fork Wind (formerly Deepwater Water Wind South Fork) before selling it to Ørsted.  In 2021, BOEM approved South Fork Wind based on a fraudulent environmental review.  The Director of BOEM, now Elizabeth Klein (see below), also worked for Latham & Watkins but now reports to the Assistant Secretary for Land and Minerals Management, Laura Daniel-Davis, who also worked for Latham & Watkins.  In this case, the three partners representing South Fork Wind work at Latham & Watkins. 

Earlier this year, I had cause to file a complaint against those Latham & Watkins partners for knowingly providing false information (in this instance, lying) to the U.S. Court of Appeals for the D.C. Circuit.  Latham & Watkins is a major law firm advising offshore wind developers.  Disturbingly, the case against BOEM concerning South Fork Wind proved beyond a reasonable doubt that BOEM acted in the interests of a private developer against U.S. interests.  It appears the administration has handed over management of U.S. offshore resources on the U.S. Outer Continental Shelf to a law firm representing foreign offshore wind developers. 

For specific details about this case and the underlying facts, read Exhibit 11.

 Finally, although it has been kept quiet, you may have heard that the Director of BOEM, Amanda Lefton, abruptly resigned (on January 19, 2023).^[5]  I cannot say for sure, but it may have had something to do with being explicitly named in reference to (seven) allegations of fraud.^[6]  Amanda Lefton resigned soon after testimony (Exhibit 11) supporting the fraud allegations was filed in a related case (before the same court).^[7]  Also, I’m sure it was a coincidence that Supervisor Peter Van Scoyoc and Councilwoman Sylvia Overby announced they would not seek re-election that same week.

An update on recent developments regarding EMF emissions will follow soon, as well as PFAS contamination.

A few paragraphs from the Reply to Federal Defendants.

In July 2022, Petitioner filed a Complaint against Federal Defendants–– the Environmental Protection Agency (EPA), Department of the Interior (DOI), and Bureau of Ocean Energy Management (BOEM) (22- v-02147, ECF 1). The Complaint alleges reckless violations of the National Environmental Policy Act (NEPA), Outer Continental Shelf Lands Act (OCSLA), Freedom of Information Act (FOIA), and violation of petitioner’s Constitutional rights to due process.

On November 2, 2022, Petitioner filed (as of right) First Amended Complaint (id., ECF 34-2) that includes eight new individuals working for BOEM and new claims regarding seven instances where BOEM falsified material facts in its environmental review. BOEM’s fraudulent representations benefited the developer to the public detriment. The proposal is for an offshore wind farm with onshore transmission facilities.

USCA Case #22-5317 Document #1994449 Filed: 04/12/2023 Page 4 of 22, referencing original Claims alleged in Complaint (July 20, 2022)

Claim Violation Federal Defendants’ failure to––

1 NEPA Include adverse environmental impacts

2 NEPA Assume responsibility for environmental analyses

3 NEPA Evaluate and verify information

4 CZMA Verify Federal Consistency Certification

5 NEPA Specify an underlying purpose or need

6 NEPA Consider viable alternatives

7 OCSLA Guarantee safety and environmental safeguards

8 OCSLA Ensure proper environmental safeguards

9 OCSLA Ensure consistency with maintenance of competition

10 EO 12898 Comply with Executive Order: environmental justice

11 US Constitution: Comply with Due Process Clause

12 FOIA Failure to comply with FOIA & NEPA

New claims alleged in First Amended Complaint (November 2, 2022)

Claim Violation

Federal Defendants’ Fraudulent statements regarding––

13 FRAUD Adverse population-level impacts on Atlantic cod

14 FRAUD Adverse socioeconomic impact: Project Cost ($2 bn)

15 FRAUD Water quality: PFAS Contamination

16 FRAUD The BOEM’s Purpose and Needs Statement

17 FRAUD The Sunrise Wind Alternative

Mr. Kinsella repeats that the case is not about the construction methods of South West Wind, but rather is about the failure of BOEM (Bureau of Energy Management), to uphold legal principles of environmental review and oversight, water quality assurance, due process, and compliance with the National Environmental Policy Act (NEPA) and Freedom of Information Act (FOIA). Relying on fraudulent materials, the permit was granted full sway.

A few more paragraphs outlining the denial to Justice and obfuscation of issues.

• Petitioner argues that there was no hearing on Federal Defendant’s Motion to Transfer (ECF 11) is to understate the district court’s prejudicial practice of denying Petitioner the opportunity to be heard in response to motions filed by Federal Defendants five times in two months (from September 13 through November 10, 2022).
• The district court’s abuse of discretion allowed the developer, SFW, to complete (unlawful) onshore construction. (Our emphasis)
• Petitioner was denied the opportunity to present his case at a hearing “[A] reasonable choice by plaintiff … cannot be overturned by the District Judge without giving plaintiff an opportunity to present facts that bear on convenience of the parties and witnesses, facts that would at least seem to involve the question what witnesses are in contemplation … in view of the nature of the action.” Fine v. McGuire, 433 F.2d 499, 501-02 (D.C. Cir. 1970). It “is [an] error that requires prompt correction by this court” (id., at 500). Petitioner respectfully seeks this Court to correct that error now.
• The district court neither considered nor allowed Petitioner to address Federal Defendants’ deficient environmental review. This complaint asks why BOEM:

fraudulently represented groundwater quality as “good[,]” and concealed harmful onsite PFAS contamination; materially misstated the project’s socioeconomic impact by excluding the largest financial item (the cost of $2 billion); falsely stated population-level effects on Atlantic Cod; left out a viable alternative (Sunrise Wind) that intervenors did discuss during the state review; ignored procurement irregularities; and relied on an inaccurate purpose and needs statement? (Id.) This case involves more than mere procedural mistakes reviewable under the APA.

Federal Defendants and SFW acknowledged receiving detailed information on these issues (above) but failed to address them. Instead, they falsified the review to cover up the project’s failings. This case alleges fraud. (Our emphasis) The filings reveal repeated attempts to relocate the hearings, making filings and rebuttals even more difficult for the complainant, and other misdemeanors of fraudulent materials.

CONCLUSION

As Mr Kinsella states, recent earlier referenced compensations, and COI issues, attempts to “disappear” the claim, have markedly tarnished the undertakings to protect the developer.   As many now state, time is nigh to name names.

However you wish to color this case: the consumer loses, the environment loses.  Internal preferential treatments contrary to the Sherman Act (Anti Trust Laws, bid rigging) are tied to serious consequences.  It is clear to this reader, that procurement is a huge responsibility with the wind turbine offshore permitting process: and few have the high-level privilege and power of offering or abetting, or challenging, these lucrative contractual benefits (Permits).

DOJ has strong medicine: fines and jail time.

It will be most interesting to see how the Kinsella case progresses across these murky waters, but as it seems now increased clarity is ensuing, and likely restitution. As we noted in our previous article, Kinsella is asking Injunctive Relief for: Disclosure, Dismantling, Removal, and Restoration.

The importance of this legal challenge cannot be overestimated.  With the proliferation of anticipated “landings,” and substations, and cabling issues, for a vast array of offshore projects, this case will stand tall, and perhaps hinder or impact other fraudulent permitting.

Indeed, the permitting of all aspects of offshore wind on the Eastern Seaboard appears precipitous, giving development access to all manner of invasive and dangerous actions, including harassment permits for hundreds of marine animals, sonar and seismic testing permits that we know kill, and harm.

The most judicious action would be to completely halt all permits, all construction under way, all testing of the ocean floor, and undertake lengthy studies referencing the failures of Europe: we cannot find a single environmental harm study over 15 years for offshore actual numbers of marine animals killed, birds, bats.   They all say the evidence is paltry, and obscure, while acknowledging massive holes in understanding of the complexity. Studies do acknowledge massive bird and bat kills, and disruption to coastal communities.

A study from Science Direct states:

We propose that OWF (Offshore Wind “Farms”) development in the MS (Mediterranean Sea) should be excluded from high biodiversity areas containing sensitive and threatened species and habitats, particularly those situated inside or in the vicinity of Marine Protected Areas or areas with valuable seascapes. In the absence of a clearer and comprehensive EU planning of wind farms in the MS, the trade-off between the benefits (climate goals) and risks (environmental and socioeconomic impacts) of OWF could be unbalanced in favor of the risks.

There is little question that the entire eastern seaboard contains sensitive species and habitats.  (And industrial wind is of no benefit to climate, weather, but that is a story for another day.)

There is no comprehensive study plan for offshore wind in the USA. Nor anywhere really. It’s a scramble, almost incoherent rush to profits, at the expense of valuable seascapes, people, water quality, wildlife, marine life.  The enormity of these errors will cause untold grief.

And we predict endless “studies” will be undertaken to envision how we got there.

As Matt Ridley says:

Madness of our worship of wind: They despoil our glorious countryside, add £6 billion a year to our household bills and are arguably the most inefficient solution to our energy crisis. So why is the Government planning to make it even easier to build them?

God speed, Mr. Simon Kinsella.