04/29/2024 | Press release | Distributed by Public on 04/29/2024 14:36
The US Court of Appeals for the First Circuit has affirmed the dismissal of two legal challenges to the Vineyard Wind 1 project (the Project). On April 24 and April 25, 2024, the same panel of First Circuit judges issued opinions in Nantucket Residents Against Offshore Wind (ACKRATS) v. BOEM and in Melone v. Coit, affirming the Massachusetts district court's decisions to grant summary judgment in favor of the federal government on the grounds that federal agencies properly considered the Project's impacts on the endangered North Atlantic right whale. The decisions are the first federal appellate victories for Vineyard Wind 1, which is currently under construction offshore of Massachusetts. Once complete, Vineyard Wind 1 is expected to generate up to 800 megawatts of renewable energy.
In the summer of 2023, US District Judge Indira Talwani of the District of Massachusetts denied claims in two cases seeking to vacate several of the Project's key federal approvals. First, in ACKRATS v. BOEM, an association of Nantucket residents opposed to offshore wind development asserted that the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Service (NMFS) violated the Endangered Species Act (ESA) and the National Environmental policy Act (NEPA) by failing to conduct adequate environmental reviews of the Project and failing to properly consider its impacts on the North Atlantic right whale and other ESA-listed species. The district court denied these claims on the basis that NMFS and BOEM complied with both laws and adequately evaluated the Project's impacts.[1]
The district court reached a similar conclusion in Allco v. Haaland, [2]where an onshore renewable energy developer attempting to disrupt offshore wind development argued that NMFS's approvals of the Project were deficient under the Marine Mammal Protection Act (MMPA) for failing to consider and address the Project's potential negative impacts on marine mammals, including the North Atlantic right whale. The district court was not persuaded by the plaintiffs' arguments and found that NMFS complied with the MMPA when issuing an approval to the Project.
Plaintiffs in both cases appealed to the First Circuit. After oral argument, US Circuit Judge William J. Kayatta Jr. wrote unanimous opinions affirming the district court's decisions to dismiss both cases. In ACKRATS v. BOEM, [3] the First Circuit found that:
In Melone v. Coit,[4] the First Circuit similarly found that the appellant's claims were without merit and referred to the decision in ACKRATS v. BOEM issued the previous day. First, the court rejected the appellant's argument that Vineyard Wind should not have been permitted to intervene as an intervenor-defendant because Vineyard Wind has significant interests in the litigation sufficient to support permissive intervention given its $300 million+ investment in the Project at the time it moved to intervene. On the merits of the appellant's MMPA claims, the court held that NMFS did not violate the MMPA or otherwise act arbitrarily or capriciously when issuing an Incidental Harassment Authorization (IHA) to Vineyard Wind. The court found that:
These First Circuit decisions mark the first appellate decisions affirming the federal government's issuance of permits to the Vineyard Wind Project. The precedent set in the First Circuit and the federal government's successful defense of Vineyard Wind will shape the trajectory of the emerging offshore wind sector and litigation against other offshore wind projects.
[1]Nantucket Residents Against Turbines, et al. v. United States Bureau of Ocean Energy Mgmt., et al., 675 F.Supp. 3d 28 (D. Mass. 2023).
[2]Allco Renewable Energy Ltd., et al. v. Haaland, et al., No. 1:21-cv-11171-IT, Dkt. No. 178 (D. Mass. Aug. 4, 2023).
[3]Nantucket Residents Against Turbines, et al. v. United States Bureau of Ocean Energy Mgmt., et al., 2024 U.S. App. LEXIS 9897 (1st Cir. 2024) ("ACKRATS v. BOEM").
[4]Melone, et al. v. Coit, et al., 2024 U.S. App. LEXIS 10079 (1st Cir. 2024) (previously Allco Renewable Energy Ltd., et al. v. Haaland, et al., the case caption changed on appeal to the First Circuit) ("Melone v. Coit").