Endangered Species Law & Policy

On May 25, 2023, the federal District Court for the District of Massachusetts denied a motion by plaintiffs seeking to halt construction of the Vineyard Wind project offshore of Massachusetts, in the case of Seafreeze Shoreside, Inc. v. U.S. Department of Interior, 22-cv-11091 (Talwani, J.). The summary judgment motions in the case are still pending, and the plaintiffs have appealed the decision denying their request for a preliminary injunction or stay under the Administrative Procedure Act (APA) to the United States Court of Appeals for the First Circuit.

The plaintiffs in Seafreeze Shoreside have asserted that the review and approval of the Vineyard Wind project violated the APA, the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA), the Clean Water Act, the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and regulations associated with those statutes. On May 10, 2023, plaintiffs filed a motion seeking to stay the administrative approvals for the project until after the Court ruled on the parties’ summary judgment motions and after all appeals were completed. The requested stay – or the preliminary injunction that the plaintiffs sought as an alternative – would have postponed the effective date of the Bureau of Ocean Energy Management’s (BOEM’s) approval of Vineyard Wind’s Construction and Operations Plan (COP) and the issuance of the final NEPA environmental impact statement (EIS) and the associated Record of Decision (ROD).

Ultimately, the court found that the plaintiffs’ delay in bringing their motion was fatal to their request for an order halting construction of the project. BOEM had issued the ROD for Vineyard Wind’s project on May 10, 2021, and issued a notice of availability for the final EIS in the March 12, 2021 issue of the Federal Register; BOEM’s approval of the COP was issued in July of 2021. The lawsuit was filed in December 2021, and the plaintiffs filed their summary judgment motion – which did not seek injunctive relief – in November 2022. BOEM and Vineyard Wind filed their own motions for summary judgment in December 2022, and the court held oral argument on April 3, 2023.

The Court noted in its decision that Vineyard Wind’s construction schedule had been publicly available on BOEM’s website since January 2022, and that it reflected that cable installation would begin in the second quarter of 2022 and continue through the fourth quarter of 2023, that scour protection would be placed beginning in the second quarter of 2022 and continue through the fourth quarter of 2023, and foundations for the wind turbines would be installed beginning late in the second quarter of 2023 and continue through the end of the third quarter of 2023. The Court therefore found that the plaintiffs had not demonstrated reasonable diligence in seeking injunctive relief. The Court also found that the “Plaintiffs’ substantial delay in seeking preliminary relief is fatal to their claim of irreparable harm,” another factor that must be shown to justify an injunction.

The ruling also likely has implications for the Court’s decision on the summary judgment motions in the case, which are still pending. One of the factors courts consider in deciding motions for injunctive relief is the plaintiff’s likelihood of success on the merits. This part of the decision focused only on the plaintiffs’ NEPA and OCSLA claims, but found that the plaintiffs had not shown a likelihood of success on the merits. The Court’s finding that the plaintiffs were not likely to succeed on their NEPA and OCSLA claims could signal how the Court will rule on those claims on the parties’ pending summary judgment motions.