Standing Traceability in Offshore Wind Challenges Requires a “Determinative or Coercive Effect” on Third-Party State/Local Decisions

Case: Kinsella v. Bureau of Ocean Energy Mgmt., No. 25-355-cv (2d Cir. Apr. 2, 2026) (amended summary order; non-precedential).

1. Introduction

This appeal arose from a pro se lawsuit by Simon V. Kinsella challenging federal approval of the South Fork Wind Farm, an offshore wind project near Long Island. Kinsella sued the Bureau of Ocean Energy Management (“BOEM”) and federal officials (the “federal defendants”), and asserted a separate fraud theory against the project developer, South Fork Wind, LLC (“South Fork”), which intervened.

The core issues were (1) whether Kinsella had Article III standing to sue the federal defendants—particularly whether his alleged harms were fairly traceable to federal action—and (2) whether his allegations stated a viable New York common-law fraud claim against South Fork.

2. Summary of the Opinion

The Second Circuit affirmed the Eastern District of New York’s dismissal and its denial of reconsideration and further amendment. The panel held:

  • No standing against the federal defendants: Kinsella’s alleged injuries (environmental impacts from onshore transmission cables and an asserted increase in utility rates) were not fairly traceable to BOEM’s offshore approvals because the relevant onshore routing and rate-related decisions were made by state and local entities outside federal defendants’ jurisdiction and control.
  • No fraud claim against South Fork: Even assuming the developer made false statements in regulatory filings, Kinsella did not plausibly plead actual reliance—an essential element of New York fraud.
  • No reconsideration / no further amendment: The district court did not abuse its discretion in denying reconsideration, and it properly denied leave to amend as futile.

3. Analysis

3.1 Precedents Cited

Standards of review and procedural posture

  • Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635 (2d Cir. 2005): Provided the framework for appellate review of Rule 12(b)(1) dismissals: factual findings for clear error and legal conclusions de novo.
  • Moreira v. Société Générale, S.A., 125 F.4th 371 (2d Cir. 2025): Supplied the de novo standard for Rule 12(b)(6) dismissals and the obligation to accept well-pleaded facts and draw reasonable inferences for the plaintiff.
  • Lora v. O'Heaney, 602 F.3d 106 (2d Cir. 2010): Confirmed that denial of a motion for reconsideration is reviewed for abuse of discretion.
  • Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479 (2d Cir. 2011): Clarified that denials of leave to amend on futility grounds receive de novo review.
  • Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159 (2d Cir. 2024): Reinforced the interpretive principle that pro se submissions are construed to raise the strongest claims they suggest.

Standing: injury, traceability, and redressability

  • Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682 (2d Cir. 2013): Restated the three elements of standing while quoting the Supreme Court’s canonical formulation in Lujan v. Defenders of Wildlife.
  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992): Supplied the controlling requirements for (i) injury in fact, (ii) causation/traceability, and (iii) redressability, including the caution that injuries caused by independent third parties generally break traceability.
  • Rajamin v. Deutsche Bank Nat'l Trust Co., 757 F.3d 79 (2d Cir. 2014): Provided the de novo standard for evaluating standing on the pleadings and undisputed record evidence.
  • Makarova v. United States, 201 F.3d 110 (2d Cir. 2000): Confirmed that, on a Rule 12(b)(1) motion, a district court may consider evidence outside the pleadings.
  • Carver v. City of New York, 621 F.3d 221 (2d Cir. 2010): Articulated the “determinative or coercive effect” theory of traceability: even when a third party directly inflicts the harm, causation can exist if the defendant constrained or significantly influenced the third party’s decision. The panel applied Carver to reject Kinsella’s theory because state/local approvals (onshore cable routing) predated federal permits and because federal defendants lacked authority over onshore infrastructure and the rate agreement.

New York fraud: reliance limits and pleading requirements

  • Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14 (2d Cir. 2015): Stated the elements of fraud under New York law (material misrepresentation, falsity, scienter, reliance, injury).
  • Pasternack v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817 (2016): Controlled the reliance analysis: even if indirect communications can support fraud, New York does not permit fraud claims based solely on a third party’s reliance; the plaintiff must have relied on the misrepresentation to their detriment. The panel used this to affirm dismissal because Kinsella pleaded reliance conclusorily and did not allege what he would have done differently.

Futility of amendment

  • Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000): Supported denying leave to amend where repleading cannot cure substantive defects—here, the lack of traceability to federal defendants and the absence of plausible reliance for fraud.

3.2 Legal Reasoning

(A) Standing and the “traceability” gap in federal-permitting challenges

The panel focused on the second standing element—causation/traceability. Kinsella alleged harms centered on onshore transmission infrastructure (groundwater contamination, electromagnetic radiation, thermal effects) and higher utility rates. The court accepted that such harms can be concrete, but held they were not fairly traceable to BOEM’s offshore approvals.

Two jurisdictional/causal findings drove the result:

  • Onshore infrastructure decisions were made by state/local actors: Because the federal defendants’ “jurisdiction did not extend to the onshore components,” federal approval of offshore turbines could not be treated as the legal cause of alleged onshore harms.
  • Rate impacts were not tied to federal conduct: The panel credited the district court’s determination that federal defendants had “no role in, nor any authority to change,” the rate agreement approved by the New York Attorney General and the New York Comptroller; Kinsella did not explain a causal mechanism linking BOEM’s approval to his alleged rate increases.

Kinsella attempted to bridge traceability using Carver v. City of New York, arguing that offshore approval effectively enabled the onshore buildout. The panel’s response is conceptually important: Carver does not erase third-party causation; it requires a showing that the defendant’s actions constrained or influenced the final decisionmaker in a “determinative or coercive” way. On the record described, state and local approval of the onshore cable route preceded the federal permits, and BOEM lacked authority over onshore routing and state rate-setting—facts that prevent characterizing federal approval as coercive or determinative.

(B) Fraud: indirect regulatory filings do not substitute for plaintiff reliance

Kinsella’s fraud theory targeted South Fork’s alleged misstatements in filings to federal regulators. The panel assumed (without deciding) that indirect communications could potentially satisfy the “representation” element under New York law, but held that the claim still failed for lack of pleaded reliance.

Relying on Pasternack v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817 (2016), the court emphasized a bright-line constraint: New York does not permit a fraud claim premised on a regulator’s reliance. Even if a defendant intends a statement to be passed along, the plaintiff must plausibly allege that they relied on it and suffered detriment because of that reliance. Kinsella’s allegation of “his own reliance” was deemed conclusory because it did not describe what decisions he made (or refrained from making) due to the misstatements.

(C) Reconsideration and futility

The panel affirmed denial of reconsideration because Kinsella did not show the district court overlooked controlling law or key facts, nor extraordinary circumstances warranting relief. It also affirmed denial of further leave to amend because the proposed third amended complaint did not cure the standing and fraud defects, making amendment futile under Cuoco v. Moritsugu.

3.3 Impact

Although issued as a non-precedential summary order, the decision illustrates litigation-significant lines in offshore wind and other infrastructure disputes:

  • Strategic defendant selection and causation proof matter: Plaintiffs challenging federal approvals must connect their injury to conduct within the federal agency’s jurisdiction, not merely to the overall project. Harms predominantly tied to state/local siting and utility ratemaking are vulnerable to dismissal for lack of traceability.
  • Carver is not a “but-for” test: The panel’s application underscores that “but-for the project” is not enough; plaintiffs must plausibly allege federal action had a coercive or determinative effect on the third party that directly caused the injury.
  • Fraud claims based on regulatory submissions face a reliance barrier: When misstatements are made to agencies, New York fraud generally cannot be built on the agency’s reliance. Plaintiffs must articulate their own concrete reliance-based decisionmaking and detriment.
  • Amendment limits in jurisdictional cases: Where the defect is structural (agency lacks authority over the complained-of component), repeated amendments may be futile absent a different injury theory or different defendants.

4. Complex Concepts Simplified

  • Article III standing: The constitutional requirement that a plaintiff show (1) a real, personal injury, (2) that the defendant caused it (traceability), and (3) that a court order would likely fix it (redressability).
  • Traceability (causation): The injury must be fairly connected to the defendant’s conduct. If a separate actor (like a state agency) independently makes the key decision that causes the harm, standing often fails—unless the defendant effectively forced or determined that decision (the Carver concept).
  • Rule 12(b)(1) vs. Rule 12(b)(6): A 12(b)(1) motion argues the court lacks power to hear the case (e.g., no standing). A 12(b)(6) motion argues that even if the court can hear it, the complaint does not allege a legally viable claim.
  • Reconsideration: A request for the same court to revisit its ruling, usually requiring a showing that the court overlooked controlling law or key facts, or that extraordinary circumstances justify relief.
  • Fraud “reliance”: In New York, the plaintiff must have personally believed and acted on the false statement in a way that caused harm; it is not enough that a regulator or another third party relied.
  • Futility of amendment: Courts need not allow another amended complaint when the new pleading still would be dismissed for the same legal reasons.

5. Conclusion

Kinsella v. Bureau of Ocean Energy Mgmt. affirms a rigorous approach to traceability in challenges to federal approvals of large, multi-jurisdictional projects: harms attributed to onshore siting decisions or state utility arrangements will not support standing against federal offshore regulators absent plausible allegations that federal action had a “determinative or coercive effect” on those third-party decisions. The opinion also reinforces New York’s insistence on plaintiff—not regulator—reliance for fraud claims based on regulatory filings, and it illustrates how these defects can render further amendment futile.