January 31, 2023

Volume XIII, Number 31

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January 31, 2023

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January 30, 2023

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This NIMBY Lawsuit Is Doomed but That Doesn't Mean that It Won't Cause Considerable Harm Before It Dies

Yesterday the Nantucket Residents Against Turbines were in Federal Court arguing the merits of their last ditch effort to stop the Vineyard Wind project which has taken ten years to plan and permit. ACKRat's lawsuit is one of two NIMBY lawsuits filed to stop this project. On the other side in court are the Federal agencies that permitted the project, after extensive public comment, and the consortium that will build the Vineyard Wind project.

The NIMBYs will lose. In order to prevail they would need to show not just that the Federal agencies were wrong to green light the project but that they were arbitrary and capricious in doing so. There's no way that the Judge is going to look at the voluminous record supporting the agencies' decisions and make that conclusion.

But even though the NIMBYs will ultimately fail in their quest, that they and other NIMBYs are able to engage in these shenanigans has derailed renewable energy projects from Maine to Long Island.   Even when those projects are back on track, they take longer and cost more than they should. In the meantime Massachusetts is less and less likely to meet its Greenhouse Gas reduction mandates.

Here's the thing. Either we believe what the scientists are telling us about the effect Greenhouse Gases are having on our planet or we don't. Believing them has caused the Federal and State Governments to spend hundreds of billions of dollars to expedite a transition to renewable energy, including energy generated by wind. Even with that once in a lifetime stimulus, wind energy projects are challenged. Last week we learned that the project off the coast of Long Island is worth hundreds of millions of dollars less than expected. And the developers of the Commonwealth Wind and Mayflower Wind projects say they can't afford to build them on the currently agreed terms.

In the face of our climate emergency, and the other challenges faced by those leading our transition to renewable energy, it makes no sense to allow the additional drag caused by NIMBY lawsuits like this one. We should all be letting our elected members of Congress know that we would like them to do something about that.

"Opponents of an offshore wind turbine farm under construction south of Martha’s Vineyard are asking a federal judge to halt the project, and require federal authorities to take another look at the project’s potential impacts on the environment and wildlife. The nonprofit group Nantucket Residents Against Turbines is trying to put the brakes on Vineyard Wind, which was approved in May 2021 by the Biden administration, and is being built a dozen or so miles off the resort island."

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XIII, Number 25
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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617-348-1711
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