SRWC Files Supreme Court Brief Challenging BOEM’s Unlawful Offshore Wind Approvals

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April 14 — The Save Right Whales Coalition (SRWC) has filed an amicus brief with the U.S. Supreme Court urging the Court to review two cases challenging the Bureau of Ocean Energy Management’s (BOEM) approval of the Vineyard Wind 1 offshore wind project. The brief argues that BOEM unlawfully reinterpreted the Outer Continental Shelf Lands Act (OCSLA) to expand its discretionary authority and bypass statutory protections for ocean users and marine ecosystems.

“Congress imposed clear, enforceable limits on BOEM’s authority,” said Lisa Linowes a spokesperson for SRWC. “Rather than following the law, BOEM reshaped it to serve policy objectives — without public input or congressional approval.”

Key Points from the Amicus Brief:

• Improper Balancing of Mandatory Protections: BOEM reinterpreted OCSLA § 8(p)(4), which requires the agency to “ensure” compliance with twelve independent statutory safeguards — including protections for navigation, fishing, and the environment — by introducing a balancing framework that treats these protections as negotiable.

• Textual Revision to Expand Authority: To support this reinterpretation, BOEM also modified a key provision of OCSLA (§ 8(p)(4)(I)) by repositioning a parenthetical phrase (“as determined by the Secretary”) in a way that artificially broadened the agency’s discretion over what qualifies as “reasonable uses” of the outer continental shelf and what level of interference is permissible — a subtle but powerful change that had the effect of rewriting the statute through guidance rather than legislation.

• Avoidance of Formal Rulemaking: In April 2021, BOEM issued a memorandum setting forth its new interpretation of the statute, which it then applied to approve Vineyard Wind 1 and ten other offshore wind projects. Despite immediately implementing this revised framework, BOEM waited three years to begin the formal rulemaking process required by the Administrative Procedure Act, thereby denying stakeholders the opportunity for notice-and-comment participation.

• Unlawful Substitution of Compensation for Prevention: Rather than ensuring that offshore development avoids interfering with reasonable ocean uses — as the statute demands — BOEM relied on compensatory mitigation such as developer-funded payments or offsets. The brief argues that this approach replaces legal compliance with after-the-fact financial remedies, in direct conflict with Congress’s mandate to prevent interference. In a January 2025 planning document, BOEM conceded “There are no existing Federal regulations that require compensation for economic loss from displacement attributed to offshore wind energy installations.”

  “This is a revealing admission,” said Linowes. “BOEM is approving projects it knows will harm fishermen and other ocean users, while relying on voluntary, developer-funded payments that have no basis in law. Compensation is not prevention — and it’s not a substitute for statutory compliance.” 

  Why This Case Matters

  OCSLA § 8(p)(4) requires BOEM to ensure offshore wind projects comply with multiple statutory safeguards, including protecting existing ocean uses. The APA prohibits agencies from adopting binding rules or new interpretations without public rulemaking. The SRWC brief contends that BOEM’s failure to follow these legal obligations reflects a pattern of administrative overreach, enabled by improper judicial deference.

  “If left unchecked BOEM’s conduct would allow agencies to bypass Congress by issuing internal memos and shifting statutory meaning without transparency or accountability,” Linowes said.

  View the brief at this link

  US Supreme Court Docket can be viewed here