Endangered Species Law & Policy

On February 29, 2024, the federal District Court for the District of New Jersey dismissed a challenge to eleven incidental take authorizations (ITAs) issued for offshore wind projects off the coasts of New York and New Jersey in the case of Save Long Beach Island v. United States Department of Commerce. The challenged ITAs had been issued by the National Marine Fisheries Service (NMFS) in 2022 and 2023 pursuant to the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361 et seq. The Plaintiffs also challenged five pending applications for ITAs that had not yet been issued at the time they filed suit. (While the MMPA provides for the issuance of two different types of ITAs—Incidental Harassment Regulations, which are issued under 16 USC 1371(a)(5)(D)(i) and authorize incidental take by harassment for up to one year, and Incidental Take Regulations, which are issued under 16 USC 1371(a)(5)(A)(i) and authorize incidental take for up to five years—the differences between the two types of ITAs were not relevant to the Court’s decision.)

The Court did not reach the merits of the ITAs in its decision, and instead dismissed the Plaintiffs’ claims because it found they did not have standing to challenge the projects. In addition, the Court found that the Plaintiffs’ challenges to expired ITAs were moot, and their challenges to ITAs that had not yet been issued were unripe.

The Plaintiffs in the case were Save Long Beach Island (SBLI) and its President, Dr. Robert Stern. SBLI is an environmental nonprofit that seeks to protect marine mammals that use the waters off of New York and New Jersey, including the endangered North Atlantic right whale (Eubalaena glacialis).

Of the 11 issued ITAs that were challenged, one authorized construction of the South Fork wind project, and the rest authorized marine site characterization surveys for various offshore wind projects. The ITAs each authorized the taking of different numbers of marine mammals depending on the activities for which authorization was sought.

The Plaintiffs argued that the science underlying the ITAs was flawed, and that noise associated with offshore wind construction and marine site characterization surveys would result in greater harm to marine mammals that was authorized by the ITAs. Overall, they claimed, the cumulative impacts of the various ITAs would subject the majority of the populations of the North Atlantic right whale and the endangered humpback whale (Megaptera novaeangliae) to taking via elevated noise exposure. The Plaintiffs also asserted that an observed increase in marine mammal deaths in late 2022 and 2023 was caused by ITAs previously issued by NMFS; this assertion contradicts a statement by the Marine Mammal Commission in February 2023 that “there is no evidence to link these strandings to offshore wind energy development,” and a statement by NMFS that “there is no scientific evidence that noise resulting from offshore wind site characterization surveys could potentially cause whale deaths.” Last, the Plaintiffs argued that the federal agencies violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by failing to prepare a cumulative environmental impact statement examining the potential impact of all issued ITAs.

The Court found that the Plaintiffs lacked standing to challenge the ITAs because they had not demonstrated an “imminent and concrete injury,” instead alleging only that Dr. Stern was concerned about offshore wind development and believed it to be his responsibility to protect natural resources near his home. This “mere academic or philosophical interest” in marine mammals was not sufficient to demonstrate a concrete injury in the absence of any allegations that Dr. Stern used the waters in which the activities authorized by the ITAs would occur beyond living on Long Beach Island. SBLI also lacked standing because it relied on Dr. Stern’s asserted interests.

The Court gave the Plaintiffs 45 days to file an amended complaint that cures the deficiencies identified in its opinion. The Plaintiffs had made additional allegations in their briefing about Dr. Stern’s experience observing whales off of the New Jersey shore, and might file an amended complaint with those allegations; however, that amendment would not address the fact that all of the challenged ITAs have now expired and the Plaintiffs’ claims are therefore moot.

This decision illustrates the importance of jurisdictional rules such as standing, mootness, and ripeness as defenses to environmental citizen suits challenging project approvals. In particular, standing has been an important defense to lawsuits challenging federal approvals for offshore wind projects, and has previously been the basis for decisions rejecting portions of challenges to the Vineyard Wind project by Nantucket residents and fishing industry groups.