South Fork Wind: Fraud

The case against the Bureau of Ocean Energy Management (BOEM), the federal regulator overseeing U.S. offshore wind energy development, regarding the South Fork Wind Project is fraud. 

U.S. Supreme Court  (case no. 22-1251)

Simon V. Kinsella, Petitioner v. Bureau of Ocean Energy Management, et al.

U.S. Supreme Court docket files are available online at SupremeCourt.gov (here).

     Petition for a Writ of Certiorari (docketed June 29, 2023)

• Petition (click here to download).
• Affidavit (click here to download) (D.C. Cir., No 22-5317, Doc. 1999552-01)
• Appendices A to I  (click here to download)

     Supplemental Brief for Petitioner (September 12, 2023)

     BOEM and South Fork Wind falsely state that BOEM does not have jurisdiction onshore or nearshore (within three miles of New York State's coastline).  That claim contradicts BOEM's Record of Decision (ROD) approving the South Fork Wind project, BOEM's published guidelines (2016 and 2020), BOEM's establishing statute the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.) and implementing regulations (30 C.F.R § 585), BOEM's lease assignment to South Fork Wind (OCS-A 0517) and the terms and conditions of the original lease (OCS-A 0486), and South Fork Wind’s own Construction and Operations Plan (COP).  Please see the documents (below) for further details–– 

• Supplemental Brief, only (18 pages) (corrections in red) (click here).
• Supplemental Brief and appendices (88 pages) (click here).
• Supp App A (15 pages), Affidavit in Support (executed), Sep 21, 2023 (click here)
• Supp App B,  Memo and Order of  Judge Block, District Court for the Eastern  District of N.Y.,  in Mahoney et al. v. U.S. Department of the  Interior et al. (E.D.N.Y., No. 22-cv-01305, ECF 93) (July 17, 2023) (click here)
• Supp App C - D.C. Bar Ass. Complaint, Latham & Watkins (Feb 2023) (click here)

                                   - Exhibits (see tab U.S. Supreme Court, scroll down) (or click here)

• Supp App D, Response to  Federal Agencies Memo in  Opposition to Motion for Injunction Relief in Simon V. Kinsella v. Bureau of  Ocean Energy Management, et al., (D.D.C., No. 22-cv-02147,  ECF 47)(Nov 9, 2022) (click here)
• SFW Letter Motion (see Affidavit  ¶¶ 21-23), requesting a pre-motion conference regarding its intent to file a Motion to Dismiss (E.D.N.Y., 23-cv-02915, ECF 66)
• BOEM Letter Motion (see Affidavit ¶¶ 24-25), requesting a pre-motion conference regarding its intent to file a Motion to Dismiss (id., ECF 68)

FIRST AMENDED COMPLAINT (filed November 2, 2022)

• First Amended Complaint (click here to download).

                   U.S. District Court for the District of Columbia (no. 1:22-cv-02147)

Cross-MOTION for Partial SUMMARY JUDGMENT (filed September  26, 2022)

• Cross-MOTION for Partial Summary Judgment (click here, 3 pages)
• MEMO in Support of Cross-Motion (click here, 42 pages)
• Exhibit A - South Fork Wind: “Virtual Open House” (click here, 1 page)
• Exhibit B - BOEM FOIA Response (click here, 5 pages)
• Statement of Material Facts (click here, 90 pages)
• [proposed] ORDER (click here, 2 pages)

COMPLAINT (filed July 21, 2022)

• COMPLAINT against BOEM, Dept. of the Interior &EPA (click here, 91 pages)
• Appendices 1–4 and Exhibits A–P (click here)

Other submissions, notices, and correspondence

• Mar 2022 - Letter Re: “Imminent Risk to Public Health” (click here, p. 31)
• Dec 2021 - Sixty days Notice of Intent to Sue BOEM (click here, p. 53)
• Feb 2021 - Response to BOEM’s FEIS for South Fork Wind (click here, p. 11)
• Nov 2018 - Response to South Fork Wind’s COP (click here, p. 14)

Simon V. Kinsella et al. v. Long Island Power Authority, et al.

N.Y. Suffolk County Supreme Court (index: 621109/2021, filed November 9, 2021).

Plaintiffs seek to annul South Fork Wind’s power purchase agreement with Long Island Power Authority (LIPA) on the grounds the award violated New York State Finance and Municipal Law. 

The Plaintiffs allege that LIPA awarded a ($1.6 billion) contract for the supply of energy in an opaque, non-competitive procurement process at inflated prices despite the winning bidder failing to meet the requirements and specifications of the South Fork Request for Proposals (the South Fork RFP).   The winning bidder was South Fork Wind LLC (formerly known as Deepwater Wind South Fork LLC).

• See COMPLAINT (index: 621109/2021, click here).
• See other court filings (click here).

Simon V. Kinsella et al. v. NYS Public Service Commission et al. 

N.Y. Supreme Court, Appellate Div. - 2nd Dept. (index 006572/2021, filed September 9, 2021).

According to Article 78, the petitioner (Simon Kinsella) is challenging the legality of the New York State Public Service Commission’s grant of a certificate to South Fork Wind LLC (formerly known as Deepwater Wind South Fork LLC).

• See Petition of Petitioner Simon V. Kinsella (click here).
• See Answer of Respondent NYS Public Service Commission (click here). 

Simon V. Kinsella v. Office of the New York State Comptroller 

Albany County Supreme Court, filed July 9, 2019 (index: 904100/2019)

Decision: “In the instant matter, the petitioner [Simon Kinsella] [...] substantially prevailed. [...] The Court finds that the record requested was of significant interest to the general public as the records sought consisted of the contract prices which would affect the pricing of utilities supplied to the general public.”

• See Petition (click here) 
• See Decision (click here)
• See other court filings (click here).

Simon V. Kinsella et al. v. Long Island Power Authority et al.

N.Y. Suffolk County Supreme Court, filed July 20, 2021 (index: 000613/2021).

Although this case was replaced with case index no. 621109/2021, (filed November 9, 2021) (see above), it provides far greater detail on how LIPA, PSEG Long Island, and South Fork Wind (formerly Deepwater Wind South Fork) (allegedly) manipulated the South Fork RFP procurement process to stifle competition.  The plaintiffs sought a judgment -

        (A) Declaring that the power purchase agreement (PPA) between LIPA and South Fork Wind LLC (formerly Deepwater Wind South Fork LLC) executed February 6, 2017, violated New York State State Finance Law § 163 and General Municipal Law § 103, and is void; 

        (B) Declaring that LIPA violated Public Authorities Law § 1020-f (aa) by not receiving Public Authorities Control Board approval of the South Fork Wind Project and that LIPA did not have authority to enter the PPA; and

        (C) Annulling the PPA in its entirety.

•    See Complaint and Petition (click here).
•    See Exhibits & Appendices (click here).