Endangered Species Law & Policy

On May 17, 2023, the federal District Court for the District of Massachusetts granted summary judgment in favor of the United States Bureau of Ocean Energy Management (BOEM) and Vineyard Wind and denied summary judgment to the plaintiffs in the case of Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, 21-cv-11390 (Talwani, J.). This is the first federal court decision upholding, on the merits, the federal government’s approval of a commercial-scale offshore wind project. There are three other cases pending that also seek to block the construction of the Vineyard Wind project offshore of Massachusetts.

Vineyard Wind’s proposed offshore wind project has been the subject of numerous environmental reviews and approvals pursuant to the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and other statutes that were not the subject of this lawsuit. The final NEPA environmental impact statement (EIS), which reviewed the impacts associated with Vineyard Wind’s Construction and Operations Plan (COP) for the project, was posted on March 12, 2021. That followed a lengthy review by BOEM, which involved numerous updates to the COP submitted by Vineyard Wind, and a supplemental EIS that considered cumulative impacts associated with offshore wind development in other areas.

BOEM also consulted with the National Marine Fisheries Service (NMFS) pursuant to Section 7 of the ESA. That consultation considered the effects of the COP on ESA-listed species, including the endangered North Atlantic right whale (Eubalaena glacialis), and the critical habitat for various species in the area of the proposed project. NMFS originally issued a Biological Opinion in 2020, concluding that the proposed action “may adversely affect but is not likely to jeopardize the continued existence” of the North Atlantic right whale and other species. In May of 2021, BOEM re-initiated consultation with NMFS to consider additional monitoring surveys and new information; NMFS issued a new Biological Opinion in October of that year. The re-issued Biological Opinion concluded that the proposed wind farm would not jeopardize the continued existence of the right whale. It also included an incidental take statement allowing a limited number of takings of the right whale, at a level that may disturb the whales’ behavior patterns but was not expected to cause serious injury or mortality, and imposing mitigation measures designed to reduce the projected number of takings. In June of 2021, NMFS also issued an incidental harassment authorization to Vineyard Wind, which allowed Vineyard Wind to take marine mammals (including the right whale) during construction of the proposed wind farm. The final approvals for Vineyard Wind’s project include numerous mitigation measures pertaining to the North Atlantic right whale and other ESA-listed animals, including restrictions on pile-driving, use of protected species observers and passive acoustic monitoring, and vessel speed restrictions.

The plaintiffs in the case – Nantucket Residents Against Turbines, known as “ACK RATs” as a nod to the Federal Aviation Administration’s code for the Nantucket airport, and Vallorie Oliver, a founding member of ACK RATS – challenged the 2021 Biological Opinion, alleging that it failed to adequately consider the Vineyard Wind project’s impact on the North Atlantic right whale, failed to utilize the “best available” science with respect to the whale as required by the ESA, and failed to ensure that the project would not jeopardize the continued existence of the whale. They also alleged that BOEM violated NEPA by failing to take a “hard look” at the environmental impacts of the project, as to the right whales and as to air quality impacts from vessel trips associated with the project.

The Court found that Oliver (and through her, ACK RATs) had demonstrated standing – although “marginally” – but only as to their claims relating to the North Atlantic right whale, and not their concern about the project’s potential effects on air quality. The Court then considered, and rejected, their claims about harm to the right whale on the merits.

Those claims rested largely on the contention that the 2021 Biological Opinion failed to adequately address five studies on the right whale between 2019 and 2021, and therefore failed to rely on the “best scientific and commercial data available.” However, the Court reviewed the Biological Opinion and determined that NMFS considered the studies cited by the plaintiffs, and either concluded that the studies were less reliable than alternative evidence, or did not change the agency’s ultimate conclusion that the Vineyard Wind project would not jeopardize the continued existence of the whale. It therefore deferred to NMFS’ evaluation of the data, and NMFS’ disagreement with the plaintiffs’ contrary interpretation of the same data. Similarly, the Court rejected the plaintiffs’ claim that NMFS and BOEM failed to adequately consider the impact of vessel strikes, pile driving noise, and other aspects of the project on right whales.

The Court therefore rejected the plaintiff’s ESA claims (and their NEPA claims, which also relied on impacts to the North Atlantic right whale) and granted summary judgment in favor of BOEM, NMFS and Vineyard Wind.