Nantucket Residents Against Turbines v. US Bureau of Ocean Energy Management is the leading case challenging an offshore wind energy project in the Outer Continental Shelf off the coast of Martha’s Vineyard and Nantucket, Massachusetts (the Vineyard Wind Project, or the Project). On May 17, 2023, the Honorable Judge Talwani of the US District Court for the District of Massachusetts denied the plaintiffs’ motion for summary judgment and granted the Bureau of Ocean Energy Management and Vineyard Wind’s motions for summary judgment, resulting in precedent that will likely affect the other three pending challenges to the Project in the District.^[1]

Nantucket Residents Against Turbines (ACK RATs) and Vallorie Oliver, a founding member of ACK RATs (collectively, Plaintiffs), brought this action against the Bureau of Ocean Energy Management and Secretary of the Interior Deb Haaland (collectively, BOEM) and the National Marine Fisheries Service and Secretary of Commerce Gina Raimondo (collectively, NMFS). Plaintiffs contend that BOEM and NMFS’s decisions approving the Vineyard Wind Project were based on inadequate environmental assessments in violation of the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA).

Plaintiffs claimed that BOEM and NMFS failed to consider impacts on the North Atlantic right whale.

On May 10, 2021, BOEM, NMFS, and the US Army Corps of Engineers issued a Joint Record of Decision adopting the Final Environmental Impact Statement (EIS). On July 15, 2021, BOEM issued final approval of Vineyard Wind’s Construction Operation Plan (COP) under the Outer Continental Shelf Lands Act. The COP was subject to numerous terms and conditions, including compliance with the biological opinions under the ESA and migration measures to protect ESA-listed animals.

Standing

The court found that Plaintiffs had standing under the ESA because Oliver, a founding member of ACK RATs and a lifelong resident of Nantucket Island, had “concrete plans” to observe the right whales in the future, has a duty to protect the right whales, and would suffer ecological grief and heartsickness if the Project resulted in a loss. For an association to have standing, at least one of its members must possess standing to sue in their own right.^[2] Oliver’s claims were sufficient to support an injury for standing purposes for ACK RATs.

Plaintiffs must also show an injury-in-fact to demonstrate standing as to the NEPA claims. This less-demanding standard still requires Plaintiffs to show that without enforcement of a procedural requirement, i.e., sufficient NEPA review, they will suffer a distinct risk to a particularized interest. “Plaintiffs need only demonstrate a particularized injury-in-fact that is not ‘so marginally related to or inconsistent with’ NEPA that it cannot be assumed that Congress intended to permit Plaintiffs’ lawsuit.”^[3] The court also found that Plaintiffs had a particular interest in right whales, which is not so marginally related to NEPA review of the Vineyard Wind Project as to preclude standing. Although Plaintiffs’ NEPA claim as to air quality and emission concerns regarding greenhouse gases was grounded in generalized harm to the environment, it was insufficient to confer standing.

APA, ESA, and NEPA Claims

A summary judgment motion under the APA requires the court to inquire into whether an agency’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

Section 7(a)(2) of the ESA requires each federal agency to ensure that agency actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species[.]”^[4] This requires a determination and consultation process between the agency and NMFS.^[5] NMFS is also required to use the “best scientific and commercial data available” in its biological opinion.^[6]

Section 9 of the ESA prohibits the “take” of any endangered or threatened species.^[7] The term “take” means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”^[8] An incidental take statement can be a part of the formal consultation process with a federal agency and will exempt an ESA violation.^[9] For this exemption, NMFS, in its biological opinion, must determine that an “incidental take” of an ESA-listed species will occur and that such take will not violate ESA Section 7(a)(2). The biological opinion must then include a written statement that (i) specifies the impact; (ii) specifies measures it considers necessary or appropriate to minimize such impact; (iii) for marine mammals, specifies the measures taken to comply with Section 101(a)(5) of the Marine Mammal Protection Act of 1972 and applicable regulations with regard to such taking; (iv) sets forth terms and conditions; and (v) specifies the procedures to be used to handle or dispose of any individuals of a species taken.^[10]

Under NEPA, if a project will result in “significant impacts” to the environment, then NEPA requires an EIS, a detailed report containing potential environmental consequences and reasonable alternatives.^[11]

Accordingly, the court considered:

(i) Whether NMFS acted arbitrarily, capriciously, and unlawfully in issuing the 2021 biological opinion by failing to adequately consider the Project’s impact on right whales and instead concluding the Project would not jeopardize the species, in violation of ESA Section (7)(a)(2).

(ii) Whether NMFS and BOEM violated and continue to violate Section 7(a)(2) of the ESA by failing to ensure through consultation that BOEM’s approval of impacts of the Project will not jeopardize the right whale.

(iii) Whether BOEM violated NEPA by failing to take the requisite “hard look” at the environmental consequences to the right whales, instead issuing a Final EIS that reflected many of the same claimed procedural and substantive defects as the 2021 biological opinion.^[12]

The court held that Plaintiffs failed to show that NMFS and BOEM failed to rely on the best scientific and commercial data available because the ESA does not define what studies and data must be considered, which results in deference to the agencies’ decision. Additionally, the 2021 biological opinion sufficiently considered the studies Plaintiffs cited as not considered.

Plaintiffs further argued that the 2021 biological opinion and the Final EIS failed to consider Project-related risks regarding vessel strikes, pile driving and operational noise, fishing entanglement risks, and loss of foraging habitats. The court held that “the Record reflects that BOEM and NMFS did consider these issues[] and that Plaintiffs’ critiques amount to disagreements with the agencies’ conclusions[, which] cannot serve as a basis for determining the agenc[ies’] action is invalid.”^[13] Additionally, Plaintiffs contend that BOEM did not consider the cumulative impacts of the Project on the right whales with a sufficient “hard look” as required under NEPA. The court held that Plaintiffs did not offer any new arguments and the agencies adequately considered the various potential Project issues. The court also rejected Plaintiffs’ claim that the biological opinion and the Final EIS did not adequately describe the appropriate environmental baseline conditions.

NMFS and BOEM did not act arbitrarily or capriciously in approving the Project, and did not violate the ESA or NEPA in issuing the biological opinion or the Final EIS. The court granted the defendants’ motions for summary judgment and denied Plaintiffs’ motion for summary judgment, resolving one of the pending legal challenges to the Project.

[1] Melone v. Coit et al., Case No. 1:21-cv-11171-IT, Seafreeze Shoreside, Inc. v. United States Dept. of the Interior, Case No. 1:21-cv-11091-IT, and Responsible Offshore Development Alliance v. Dep’t of the Interior et al., Case No. 1:22-cv-11172-IT, similarly challenge the Project under the Administrative Procedure Act, Marine Mammal Protection Act, Merchant Marine Act of 1920, Clean Water Act, Outer Continental Shelf Lands Act, Endangered Species Act, and National Environmental Policy Act.

[2] See Nantucket, 2023 U.S. Dist. LEXIS 86176, at *33 (quoting United States v. AVX Corp., 962 F.2d 108, 116 (1st Cir. 1992)).

[3] Nantucket, 2023 U.S. Dist. LEXIS 86176, at *41.

[4] 16 U.S.C. § 1536(a)(2).

[5] See Nantucket, 2023 U.S. Dist. LEXIS 86176, at *46 (citing Water Keeper Alliance v. U.S. Dep’t of Def., 271 F.3d 21, 25 (1st Cir. 2017); see also 16 U.S.C. § 1536; 50 C.F.R. § 402.14).

[6] 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(d).

[7] 16 U.S.C. § 1538(a).

[8] 16 U.S.C. § 1532(19).

[9] 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(g)(7), (i).

[10] 50 C.F.R. § 402.14(i)(1)(i)-(v); 16 U.S.C. § 1536(b)(4).

[11] 42 U.S.C. § 4332.

[12] Nantucket, 2023 U.S. Dist. LEXIS 86176, at *54.

[13] Nantucket, 2023 U.S. Dist. LEXIS 86176, at *71.