Did BOEM Break the Law to Approve Offshore Wind?
By Lisa Linowes, Save Right Whales Coalition
The federal government is charging ahead with offshore wind development — but is it doing so lawfully?
That’s the question now before the U.S. Supreme Court, as the Save Right Whales Coalition (SRWC) joins legal challenges to the Bureau of Ocean Energy Management’s (BOEM) approval of the Vineyard Wind 1 project and ten other offshore wind facilities. In a newly filed amicus brief, SRWC argues that BOEM broke federal law by rewriting statutory language, bypassing public rulemaking, and using compensation to justify harm — all to advance offshore wind at any cost.
Let’s take a closer look at the core legal questions:
1. Did BOEM 'balance' what Congress said to enforce?
Yes — and that’s exactly the problem.
Under the Outer Continental Shelf Lands Act (OCSLA), BOEM is required by law to “ensure” that offshore projects comply with twelve separate safeguards — including protections for fishing, navigation, the environment, and public safety.
But instead of enforcing those requirements independently and equally, BOEM introduced a “balancing” framework — claiming it could weigh these protections against one another and make tradeoffs. That means BOEM could allow harm to fishermen, for example, so long as the project benefitted something else (like national energy goals).
Here’s the issue: OCSLA doesn’t authorize balancing. It says the agency “shall ensure” that each of the twelve statutory criteria is met. There’s no language giving BOEM permission to rank or weigh them — unlike other provisions of OCSLA (like §18, for oil and gas), where Congress did include balancing language.
BOEM’s “balancing test” is an invention — not law.
2. Did BOEM rewrite the law?
Yes — subtly but powerfully.
As part of its reinterpretation of §8(p)(4), BOEM repositioned a parenthetical clause — “(as determined by the Secretary)” — to give itself more discretion than Congress provided.
In the statute, the phrase clearly modifies the term “reasonable uses” — meaning the Secretary can decide what qualifies as a reasonable use of the ocean (like fishing, shipping, etc.). But BOEM moved the clause in its internal documents and rulemaking to imply that the Secretary also has discretion over whether interference has occurred and whether to prevent it.
This small grammatical tweak had massive legal implications. It allowed BOEM to reframe its duty to prevent interference as a discretionary judgment — when in fact, Congress made it a binding requirement.
In plain terms: BOEM took a statute written to protect ocean users and rewrote it to protect itself.
3. Did BOEM implement a rule before it was legal?
Yes — in direct violation of the Administrative Procedure Act (APA).
BOEM issued a legal memorandum (M-37067) in April 2021, implementing its new balancing framework and statutory interpretation. It immediately applied that framework to approve Vineyard Wind 1 and ten other projects.
But BOEM didn’t publish its Notice of Proposed Rulemaking until January 2023 — nearly two years later — and didn’t finalize the rule until July 2024.
This violates the APA, which prohibits agencies from applying binding new interpretations or rules until they go through formal rulemaking, including:
- Public notice
- A comment period
- Responses to significant comments
- Final publication
In short: BOEM used a rule that wasn’t legal yet. And courts have consistently struck down this kind of “rule first, justify later” behavior as unlawful.
Bonus: Can BOEM Just Pay People Instead?
BOEM seems to think so — but the law says otherwise.
Instead of fully preventing unreasonable interference with other ocean users (as required by OCSLA), BOEM has leaned heavily on after-the-fact compensation, such as payments to displaced fishermen.
But in a January 2025 planning document, BOEM made a surprising admission:
“There are no existing Federal regulations that require compensation for economic loss from displacement attributed to offshore wind energy installations.”
Translation? BOEM knows these payments are voluntary, unenforceable, and not grounded in law — yet it continues to use them as a substitute for legal compliance.
As SRWC put it: “Compensation is not prevention — and it’s not a substitute for statutory compliance.”
Why This Case Matters
If BOEM’s approach is allowed to stand, it would set a dangerous precedent: that federal agencies can rewrite laws by memo, evade public accountability, and retroactively justify their actions after the damage is done.
And if that happens, it won’t stop with offshore wind.
”If left unchecked,” SRWC warns, “BOEM’s conduct would allow agencies to bypass Congress by issuing internal memos and shifting statutory meaning without transparency or accountability.”
Learn More
• Read the SRWC amicus brief at this link.
• Follow the US Supreme Court case docket here.
• Explore SRWC’s work: https://saverightwhales.org
Lisa Linowes is an energy policy analyst and spokesperson for the Save Right Whales Coalition.