Endangered Species Law & Policy

On April 24 and 25, 2024, the United States Court of Appeals for the First Circuit unanimously upheld two federal district court decisions rejecting challenges to the federal approvals for the Vineyard Wind offshore wind farm in the cases of Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management (ACK RATs),^[1] No. 23-1501, and Melone v. Coit et al., No. 23-1736. Each of the cases challenged different aspects of the federal government’s approvals for Vineyard Wind, but both argued that the project would harm the endangered North Atlantic right whale (Eubalaena glacialis) in violation of federal law. The district court decisions in both cases were previously discussed on this blog (ACK RATs) (Melone).

The plaintiffs in ACK RATs asserted claims that the National Marine Fisheries Service (NMFS) issued a Biological Opinion (BiOp) for Vineyard Wind that failed to comply with the Endangered Species Act, and that the Bureau of Ocean Energy Management (BOEM) violated the National Environmental Policy Act (NEPA) by relying on the deficient BiOp and failing to take the required “hard look” at the environmental impacts of Vineyard Wind.

With respect to the BiOp, the ACK RATs plaintiffs asserted that it did not properly analyze the environmental baseline of the right whale, ignored the effects of the Vineyard Wind project on right whales and failed to adequately mitigate those effects, and did not address the project’s effects on the right whale’s long-term recovery prospects when considered in conjunction with other threats to the species.

The Court analyzed the BiOp in detail while considering each of these claims. The Court rejected the plaintiffs’ claims about the BiOp’s analysis of the environmental baseline for the species, finding that the BiOp gave adequate consideration to each of several studies on the right whale that the plaintiffs claimed NMFS had not analyzed appropriately, and deferred to the agency’s scientific judgment. It therefore rejected the plaintiffs’ claim that NMFS had not applied the best available scientific data. Similarly, the Court pointed out that the plaintiffs’ assertions about Vineyard Wind’s mitigation measures misread the BiOp’s discussion of those measures, and cited no data to support their assertion that some of the mitigation measures would be ineffective. The Court also rejected the plaintiffs’ assertion that pile-driving noise could drive right whales into areas where they would be at greater risk of entanglement with fishing gear or vessel strikes, calling that assertion “speculative” and pointing out that pile-driving will be prohibited during the months when the right whale is most likely to be in the project area. It also held that BOEM had not violated NEPA by relying on the BiOp, because the BiOp itself was not deficient.

In addition, the Court found that some of the challenges to Vineyard Wind’s mitigation measures were moot, since they applied only to pile-driving for jacket foundations and all jacket foundations had been installed by the time the appeal was decided. It also found some of the plaintiffs’ arguments waived because the plaintiffs had not raised them in their comments to the agency or notice of intent to sue. These aspects of the decision show the continuing importance of procedural defenses to environmental citizen suits challenging project approvals.

The rejection of these challenges likely bodes well for the federal government’s defense of another lawsuit challenging its approvals for the Coastal Virginia Offshore Wind Project (discussed here). That suit raises many of the same arguments that were rejected by the decisions in ACK RATs, and the plaintiffs in that case are represented by the same attorneys that litigated ACK RATs.

In the Melone case, the Court rejected the plaintiff’s claim that NMFS’ issuance of an Incidental Harassment Authorization (IHA) to Vineyard Wind violated the Marine Mammal Protection Act (MMPA). Melone limited his appeal to two aspects of the IHA: NMFS’ finding that that the non-lethal incidental harassment of up to 20 right whales constituted “small numbers” of marine mammals as defined in the MMPA, and its consideration of Vineyard Wind’s activities in its project area as the “specified activity” in a “specific geographic region” under consideration for the IHA.

NMFS had found that the non-lethal harassment of 20 right whales – approximately 5.5% of the population – was “small numbers” of right whales when considered against the entire population. Melone argued that this was a relatively large proportion of the entire population of the species, but the Court disagreed, finding that NMFS’ determination was consistent with past agency practice and with earlier cases (including one allowing harassment of 10% of the beluga whale population).   

Melone also sought a determination that NMFS should have considered not only Vineyard Wind’s activities, but the cumulative impact of similar activities authorized contemporaneously and in other regions. The Court analyzed the language of the MMPA that authorizes IHAs, and found that it only requires a narrow consideration of the activities for which the applicant seeks authorization, and only in the region where those activities will occur. Additionally, it found that NMFS had considered the cumulative impacts of other authorized activities as part of its analysis in determining that the activities would have a negligible impact on the whale, which Melone had not challenged.

The Court also rejected Melone’s argument that the district court should not have allowed Vineyard Wind to intervene in the case, and agreed with the district court’s determination that Vineyard had substantial interests at stake given its investment of over $300 million in the project and contracts worth over $3 billion to build the project. 

Vineyard Wind is currently under construction, and has begun delivering electricity to the power grid from some of the turbines that have already been installed. The federal government’s victories on appeal bode well for future challenges to its approvals for offshore wind projects, and for the nascent offshore wind industry in the United States.

^[1] Nantucket Residents Against Turbines is also known as “ACK RATs” as a nod to the Federal Aviation Administration’s code for the Nantucket airport, ACK.