Skipping the Rules: Offshore Wind’s Legal Issue

From MasterResource

By Lisa Linowes

“The law remains clear: the Department of the Interior must ensure that offshore projects prevent unreasonable interference before approval — not simply allow harm and hope payouts will quiet objections.”

With offshore wind, a lethal tort issue lurks beneath the waves: Is it enough to pay off harmed ocean users after the fact, or does the law demand the government prevent harm in the first place? Under the Outer Continental Shelf Lands Act (OCSLA), a clear answer is being dangerously overlooked.

OCSLA, originally passed in 1953 and amended by the Energy Policy Act of 2005, governs energy development on the Outer Continental Shelf (OCS). Section 8(p)(4)(I) imposes a specific duty on the Department of the Interior: before approving offshore activities like wind development, the Secretary must ensure the project “provides for the prevention of interference with reasonable uses” of the ocean — including fishing, recreation, and navigation.

This is not just bureaucratic language. It’s a binding legal duty. The government must prevent offshore projects, like wind farms, from unreasonably interfering with existing ocean uses, such as commercial fishing, recreation, and navigation. The law does not say the government can simply let interference happen and pay those harmed later.

The legal framework is well established. The Department’s own Solicitor, in Opinion M-37059, makes this clear. The statute applies a reasonableness standard: if a project causes unreasonable interference, it cannot go forward; if the interference is minimal (de minimis) or reasonable, it may proceed. But crucially, offering financial compensation to harmed parties does not satisfy this duty. In fact, the very creation of a compensation scheme presumes that interference exists — it doesn’t erase it.

A Workaround?

So why, then, are developers setting up compensation funds for displaced fishermen? The answer lies in a legal workaround. The Bureau of Ocean Energy Management (BOEM) has leaned on the National Environmental Policy Act (NEPA), which has its own framework for “mitigation.” NEPA’s regulations allow agencies to consider a range of mitigation options, including avoiding, minimizing, repairing, reducing, or compensating for environmental impacts. BOEM has treated developer-funded compensation programs as valid mitigation under NEPA, using them to support positive approval decisions for offshore wind projects.

But NEPA is only procedural — it cannot override or substitute for the substantive requirements of OCSLA. While NEPA allows agencies to consider compensation, OCSLA demands prevention when interference crosses the threshold of unreasonableness.

Moreover, BOEM itself has acknowledged the legal limits of these compensation efforts. In its Guidelines for Providing Information for Mitigating Impacts to Commercial and For-Hire Recreational Fisheries on the Outer Continental Shelf Pursuant to 30 CFR Part 585, BOEM explicitly states:

There are no existing Federal regulations that require compensation for economic loss from displacement attributed to offshore wind energy installations.

This distinction matters. While OCSLA Section 302 (43 U.S.C. § 1846) provides a statutory process to compensate fishermen for physical gear losses caused by oil and gas activities, there is no similar federal law covering lost revenue or displacement from offshore wind. Payments for lost income or access are voluntary, not legally required, and they do not fulfill the government’s statutory obligation under OCSLA § 8(p)(4)(I).

Biden Trouble Should Not be Trump’s

The Biden administration’s BOEM systematically ignored the law — approving offshore wind projects by relying on compensation schemes rather than fulfilling its duty to prevent interference. Now, President Trump, in greenlighting the Empire Wind project off New York as part of a broader effort to secure a new gas pipeline, risks making the same mistake. [1]

No deal, no matter how politically or economically tempting, gives the federal government the right to bypass OCSLA’s mandates. The law remains clear: the Department of the Interior must ensure that offshore projects prevent unreasonable interference before approval — not simply allow harm and hope payouts will quiet objections.

President Trump and his team should not follow the Biden administration down this flawed path. Upholding the law is not optional. Anything less would betray the public trust — and President Trump should seize the chance to do what the Biden administration did not: uphold the law.

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[1] For greater detail on the Trump Administration’s deal with New York Governor Kathy Hochul to okay Empire Wind in return for certification of natural gas pipelines in the state, see here.

This analysis. slightly edited, was first published by Save Right Whales Coalition and WindAction. Lisa Linowes’s previous posts at MasterResource can be found here.