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Posted on: August 17, 2023

Cape May County to Appeal Court Order Recording Orsted Easement

Cape May Court House, NJ: The County of Cape May, New Jersey will appeal a Judge’s decision ordering the Cape May County Clerk to 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,” said former New Jersey Superior Court Judge Michael J. Donohue, who is serving as Special Counsel to the County on offshore wind issues. 

“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. That new law has yet to be subject to the crucible of judicial appeals and we believe it will fail on several fronts.” 

Superior Court Assignment Judge Michael Blee on August 15, 2023, after hearing oral argument from Donohue and Orsted’s attorneys, ruled that the County Clerk is required to record the Orsted easement. 

“This is a brand new law that has never been tested in Court,” Donohue said. “The County has appealed the BPU ruling that took County real property rights and gave them to Orsted. In Orsted’s new lawsuit, we argued, under Court Rule, that the BPU, Rate Counsel and the eleven 

Cape May County Municipalities that participated in the BPU proceedings should have been allowed to participate in Orsted’s lawsuit seeking to force the filing of the easement. The Judge disagreed.” 

Orsted has benefited from 2021 changes to the Offshore Wind Economic Development Act that removed the ability of counties and municipalities to refuse to grant property rights or object to permit application. 

Donohue continued, “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.” 

As for the remainder of this latest Orsted lawsuit against the County related to a road opening permit for test bores and openings, the Court recently ruled in favor of Orsted in a similar suit against Ocean City. The County saw no utility in litigating those issues where the outcome was already clear. 

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.”