DOVER, Del. - A challenge to Delaware’s review of a proposed offshore wind project will move forward after the Delaware Environmental Appeals Board unanimously denied DNREC’s request to dismiss the case Tuesday.
The appeal was filed by Edward Bintz, who is challenging two federal consistency decisions issued by DNREC involving US Wind’s proposed offshore wind project. The project would bring electricity generated offshore to Delaware through underwater cables.
The hearing Tuesday focused on whether the Environmental Appeals Board has the authority to hear Bintz’s appeal.
DNREC argued the board should dismiss the case because there is no remedy it could provide at this point. Deputy Attorney General Devera Scott argued the federal consistency process is already underway and that the state’s role in that process has expired.
Scott also argued that federal law does not provide a private right of action to challenge state consistency decisions.
Bintz’s attorney, Jane Brady, disagreed.
Brady argued that Bintz is not bringing a federal case under the Coastal Zone Management Act. Instead, she said he is challenging a decision made by the DNREC secretary under Delaware law.
"The state argued that there's no remedy available to the board, but they were talking about an action under federal law," Brady said. "We brought this action under state law. So I think that's why we won."
The board went into executive session following the arguments before unanimously denying DNREC’s motion to dismiss.
Board member Todd Culotta said the decision was limited to allowing Bintz the opportunity to present his case.
"I can only speak for myself and my vote. But I think it's fine to let him make his case," Culotta said. "Where it goes from there, you know, that's not what we're deciding here right now. We're just giving him the opportunity to make his case."
The board has tentatively scheduled the next hearing for September 22. That hearing is expected to address the merits of Bintz’s appeal.
Tuesday’s decision does not determine whether Bintz’s challenge to DNREC’s review is valid, nor does it stop the US Wind project.
The proposed project has been the subject of several state and federal permitting processes, including reviews of potential impacts to Delaware’s coastal resources.
