Massachusetts Court Rejects Marine Mammal Protection Act Challenge to Vineyard Wind Project
Massachusetts Court Rejects Marine Mammal Protection Act Challenge to Vineyard Wind Project

On Friday, August 4, 2023, the United States District Court for the District of Massachusetts granted summary judgment in favor of the National Marine Fisheries Service (“NMFS”) in the case of Melone v. Coit et al, 21-cv-11171 (Talwani, J.). The Court found that NMFS complied with the Marine Mammal Protection Act (“MMPA”) in authorizing construction of the Vineyard Wind project despite its impacts on the North Atlantic right whale (Eubalaena glacialis), which is protected under the MMPA and the Endangered Species Act.

Plaintiff Thomas Melone is the president of Allco Renewable Energy, Ltd., a Connecticut-based solar developer and a May-to-November resident of Edgartown, Massachusetts (on the Nantucket Sound). He expressed an interest in observing and protecting the North Atlantic right whale and had taken part in whale-watching activities. Melone argued that NMFS violated the MMPA’s notice requirements by failing to publish notice of the proposed Incidental Harassment Authorization ("IHA") for Vineyard Wind in local newspapers like the Vineyard Gazette and the Boston Globe, and had missed the MMPA’s deadlines both to issue the public notice and to make a decision on Vineyard Wind’s IHA application after the close of the public notice period. He also alleged that the IHA itself violated the MMPA, and challenged NMFS’s interpretation of six terms in the provision of the MMPA that governs the issuance of IHAs.

NMFS and Vineyard Wind argued that Melone’s interest in the right whale was too remote to give him standing to sue, but the Court disagreed. The Court noted the small number of remaining right whales—less than 400—and stated that even a small increase in the probability of harm to one individual whale could harm Melone’s interest in viewing the species. Thus, it found that Melone had standing based on his contention that NMFS’s action increased the likelihood of harm to the right whale and therefore reduced the possibility that he could observe the right whale in the future.

However, the Court rejected Melone’s arguments that the IHA should be vacated. NMFS conceded that it had neither met the timing requirements in the statute nor published notice of Vineyard Wind’s IHA application in a newspaper. But the agency argued that the procedural defects were harmless error, and the Court agreed.

The Court also rejected Melone’s arguments that NMFS had misinterpreted several terms in the MMPA in issuing Vineyard Wind’s IHA for right whales, finding that NMFS’s interpretation of those terms was reasonable and deferring to NMFS’s interpretation. For example, the Court evaluated the suite of mitigation measures required by NMFS’s IHA, including protected species observers and vessel speed restrictions, against Melone’s contention that those mitigation measures were inadequate. After pointing out that Melone had not offered any evidence to undermine NMFS’s conclusion that those mitigation measures would result in the “least practicable impact” to the species, as required by the MMPA, the Court accepted NMFS’s position.

This is the second federal court decision upholding, on the merits, the federal government’s approval of a commercial-scale offshore wind project. This is one of four cases that sought to block the construction of the Vineyard Wind project offshore of Massachusetts. The same court previously dismissed another of those cases on the merits, and rejected a motion seeking an injunction against the project in a third case; both of those decisions have been appealed to the United States Court of Appeals for the First Circuit.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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