Over the past few years, opponents of offshore wind energy have filed at least 15 lawsuits against 5 projects in federal court. One tactic that plaintiffs in these lawsuits sometimes use is to move for a preliminary injunction to halt construction until the court reaches a final decision on the merits. If granted, a preliminary injunction could delay a project for years, or kill it entirely.
To succeed on a motion for preliminary injunction, the plaintiff must show that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) the injunction is in the public interest. A preliminary injunction is considered “an extraordinary remedy [that is] never awarded as of right.”
To date, federal courts have been reluctant to grant this type of extraordinary relief in challenges to offshore wind projects. For example, in recent years, federal courts have denied motions for preliminary injunction in litigation pertaining to the South Fork Wind, Vineyard Wind, and Coastal Virginia Offshore Wind projects.
Recently, a federal court denied two back-to-back motions by a group called Green Oceans to preliminarily enjoin construction of the 704-megawatt Revolution Wind project off the coast of Rhode Island. In that lawsuit, the Sabin Center partnered with attorneys from King & Spalding LLP to submit two amicus briefs for Climate Action Rhode Island (CARI) opposing the motions (see here and here). In those two briefs, CARI argued that the motions for preliminary relief should be denied because impeding construction of the renewable energy facilities necessary to stop climate change, such as the Revolution Wind project, would not serve the public interest. While the court did not ultimately reach the issue of whether a preliminary injunction would serve the public interest, it agreed with CARI that preliminary injunctions should not be issued in the case.
For background, in January 2024, Green Oceans filed a complaint in the U.S. District Court for the District of Columbia, alleging that the Bureau of Ocean Energy Management (BOEM) and other federal agencies that reviewed and approved the project violated the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act, and several other federal statutes by failing to adequately consider impacts to marine mammals, among other issues. In its April 2024 and May 2024 motions for preliminary injunctions, Green Oceans asked the court to halt all construction during the adjudication of Green Oceans’ claims. Green Oceans argued that a preliminary injunction was necessary to avoid imminent harm to the North Atlantic Right Whale and other marine species and resources.
In its two amicus briefs, CARI argued that a preliminary injunction would undermine, rather than serve, the public interest. The briefs noted that development of the Revolution Wind project is key to meeting Rhode Island’s emissions reduction goals, thereby mitigating the many impacts of climate change. The briefs pointed to additional benefits from the project, including its potential to generate regional economic development and employment opportunities, and its potential to benefit public health by reducing reliance on the combustion of fossil fuels.
Crucially, CARI’s amicus briefs also argued that the construction of Revolution Wind and other offshore wind projects is not incompatible with the conservation of North Atlantic Right Whales. The briefs cited assessments showing that entanglement in fishing gear and vessel strikes are the main causes of death and injury to right whales, along with studies showing that climate change itself poses a substantial threat to the survival of right whales.
Ultimately, the court denied each of Green Oceans’ motions for preliminary injunctions, without reaching the public interest prong of the test. The court denied the first motion on technical grounds, citing plaintiffs’ failure to meet and confer with the other parties before filing the motion, as required by local court rules. The court denied the second motion on the grounds that Green Oceans had not established a sufficient likelihood of being able to prove that it had standing to bring its claims. As a result, the court did not need to address whether a preliminary injunction would be in the public interest. As of August 2024, the court was considering a motion by defendant Revolution Wind to dismiss the lawsuit.
Jacob Elkin is a Renewable Energy Legal Defense Initiative Fellow at the Sabin Center.
Matthew Eisenson is a Senior Fellow at the Sabin Center for Climate Change Law, where he leads the Renewable Energy Legal Defense Initiative (RELDI).
