Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 302
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4. SAFEGUARDING
THE ENVIRONMENT
4.1 The National Environmental Policy Act
NEPA requires that environmental consequences be considered when a major
federal action may have an impact on the
environment. 27 Under NEPA, any new project
with potential environmental impact must
undergo an Environmental Assessment (EA)
and/or an Environmental Impact Statement
(EIS). 28 These assessments consider both
the adverse impacts and socio-economic
benefits of an action. 29
If an action is unlikely to have a significant
impact, an EA is prepared, which can then
result in a finding of no significant impact
(FONSI). 30 If a FONSI is issued, an EIS is not
necessary. If it is clear from the outset that
the action will result in a significant impact,
however, or if an EA does not yield a FONSI,
then an EIS must be prepared. 31 An EIS involves a multi-step process that includes more
rigorous analysis of environmental impacts
and the opportunity for public comment.
It is reasonable to expect that BOEM will
require an EIS for the Construction and
Operations planning phase of offshore wind
projects. 32
Congress in June, 2023, enacted legislation
United States
that provides for reforms to the NEPA process, which impacts offshore wind projects.
Provisions include a two-year time limit for
EISs, page limitations, clarity on the data
required for the review, and reduction in the
scope of impacts considered in the review.
Additional permitting reform could occur in
the U.S.
4.2 Endangered Species Act
The Endangered Species Act (ESA) was
enacted to ensure conservation of the ecosystems on which "endangered species and
threatened species depend" and to "provide
a program for the conservation" of these
species. 33 BOEM works with the U.S. Fish and
Wildlife Service (USFWS) and the National
Marine Fisheries Service (NMFS) to ensure
that an offshore wind project is "not likely to
jeopardize the continued existence of federally listed species or destroy or adversely
modify designated critical habitat," such as
with regard to whales, turtles or birds.
First, BOEM engages in an informal, initial
consultation with USFWS and NMFS to determine what effect the project may have on
the listed species and their habitat. During
this stage, BOEM evaluates the proposed
project and information regarding effects on
the species and issues a Biological Assessment (BA). If there are no anticipated effects,
27 42 USC ยง 4321.
28 https://www.epa.gov/nepa/national-environmental-policy-act-review-process.
29 https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Final-Version-Offshore-Benefits-White-Paper.pdf.
30 https://www.epa.gov/nepa/national-environmental-policy-act-review-process.
31 https://www.epa.gov/nepa/national-environmental-policy-act-review-process.
32 https://www.boem.gov/renewable-energy/state-activities/vineyard-wind.
33 16 U.S.C. 1531 et seq.
