Environmental Offshore wind energy project Right whales

Where a complaint has been filed challenging the approval of an offshore wind energy project off the coast of Martha’s Vineyard and Nantucket, summary judgment should enter in favor of the National Marine Fisheries Service and the U.S. Bureau of Ocean Energy Management, as the plaintiffs have failed to demonstrate that NMFS or BOEM violated the Endangered Species Act or the National Environmental Policy Act.

“Plaintiffs, Nantucket Residents Against Turbines (‘ACK RATs’) and Vallorie Oliver, a founding member of ACK RATs, bring this action against the U.S. Bureau of Ocean Energy Management (an agency within the U.S. Department of the Interior) and Deb Haaland in her official capacity as Secretary of the Interior (collectively, ‘BOEM’) and the National Marine Fisheries Service (an agency within the Department of Commerce) and Gina Raimondo in her official capacity as Secretary of Commerce (collectively, ‘NMFS’). Plaintiffs contend that BOEM and NMFS’s decisions approving an offshore wind energy project off the coast of Martha’s Vineyard and Nantucket (the ‘Vineyard Wind Project’ or the ‘Project’) was based on inadequate environmental assessments in violation of the National Environmental Policy Act (‘NEPA’), 42 U.S.C. 1421, et seq., the Endangered Species Act (‘ESA’), 15 U.S.C. 1531, et seq., and the Administrative Procedure Act (‘APA’), 5 U.S.C. 701-706.

“The court now turns to the merits of the claims for which Plaintiffs provided proper notice, specifically: (i) whether in issuing the 2021 [biological opinion (BiOp)], NMFS acted arbitrarily, capriciously, and unlawfully by failing to adequately consider the Project’s impact on North Atlantic 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; and (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 [Environmental Impact Statement (EIS)] that reflected many of the same claimed procedural and substantive defects as the 2021 BiOp. Because Plaintiffs’ sole surviving claim under NEPA is that the Final EIS ‘parrots the flawed analysis and conclusions set forth in the BiOp,’ the court considers Plaintiffs’ ESA and NEPA claims together.

“For the foregoing reasons, Plaintiffs have failed to demonstrate that NMFS or BOEM violated the Endangered Species Act or the National Environmental Policy Act in considering and issuing the 2021 Biological Opinion or the Final Environmental Impact Statement for the Vineyard Wind Project. Accordingly, Defendants and Vineyard Wind’s Motions for Summary Judgment are granted and Plaintiffs’ Motion for Summary Judgment is denied.”

Nantucket Residents Against Turbines, et al. v. U.S. Bureau of Ocean Energy Management, et al. (Lawyers Weekly No. 02-217-23) (52 pages) (Talwani, J) (Civil Action No. 1:21-cv-11390-IT) (May 17, 2023).

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