Offshore Wind Easement Must Be Issued, Judge Tells Cape May County

CAPE MAY COURT HOUSE, NJ — The county is already preparing to appeal a judge's ruling that they must file an easement transferring County property interests to the Danish offshore wind company Orsted's Ocean Wind One project.

“Remember, we believe this easement was taken from the people of Cape May County by the Board of Public Utilities in an unconstitutional fashion and without required due process,” former New Jersey Superior Court Judge Michael J. Donohue, who is serving as Special Counsel to the County on offshore wind issues, said in a statement.

“The Legislature passed a law, essentially in the middle of the night, to take away Home Rule and BPU immediately used it to push county and local elected officials out of the way and give Orsted their easement,” he said. “That new law has yet to be subject to the crucible of judicial appeals and we believe it will fail on several fronts.”

Read more: Ocean City The First Battleground In National Offshore Wind Fight

Changes to Offshore Wind Economic Development Act in 2021 removed the ability of counties and municipalities to refuse to grant property rights or object to permit application, county officials said.

The law has never been tried in court before, Donohue said.

“It is often the case with brand new laws that the parameters and final interpretation are left to the Appellate Division or even the State Supreme Court. Given the paramount importance of the meaning of this new law, we intend to make sure our Appellate Courts have a chance to weigh in on important issues of constitutionality, due process and a clear conflict of interest on the part of the BPU,” he said.

The rest of the lawsuit, involving road opening permits, was not fought because a judge already ruled in favor of Ocean City in a similar suit, officials said. Read more: Ocean City Must Issue Permits For Offshore Wind, Judge Rules

Cape May County's appeal of the BPU’s decision is pending in the Appellate Division and a new appeal will be filed challenging the recording of the easement. The County is also exploring federal litigation against multiple involved agencies and state litigation involving the New Jersey Department of Environmental Protection.

“The Board of Commissioners has determined that if we fight in the courts and the court of public opinion, we have some chance to make changes to these projects or halt them before they damage our environment and our economy,” Donohue said. “If we don’t fight, we have no
chance at all.”