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 ...

On March 18, three advocacy organizations and their members filed a lawsuit challenging an offshore wind project against the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The lawsuit alleges that the Biological Opinion (BiOp) issued by NMFS for Dominion Energy’s Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) because it fails to adequately analyze the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). … 

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 ...

On January 25, the Bureau of Ocean Energy Management (BOEM) and the National Oceanic and Atmospheric Administration (NOAA) Fisheries released a final North Atlantic Right Whale and Offshore Wind Strategy (the “Strategy”). The Strategy expresses the agencies’ joint goal of protecting and promoting the recovery of the North Atlantic right whale (Eubalaena glacialis) while responsibly developing offshore wind energy.

The North Atlantic right whale (NARW) population has declined significantly over the past decade. Population estimates through December 2022 indicate ...

On November 13, two advocacy organizations submitted a notice of intent to sue the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The notice letter alleges that the September 18, 2023 Biological Opinion (BiOp) issued by NMFS for the Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) because it fails to adequately analyze and mitigate the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). … 

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. … 

On June 16, 2023, in a highly anticipated decision, the United States Court of Appeal for the D.C. Circuit set aside a biological opinion regarding the effects of the federal lobster fishery on the North Atlantic right whale (Eubalaena glacialis). The court held that a presumption in favor of an endangered species is not required by the Endangered Species Act (ESA) and, further, that such a presumption can distort the agency’s scientific judgment and did so in this circumstance.

The National Marine Fisheries Service (NMFS) issued the biological opinion in 2021 analyzing the ...

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 ...

On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...