SEAFREEZE SHORESIDE, INC. v. UNITED STATES DEPARTMENT OF THE INTERIOR

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

SEAFREEZE SHORESIDE, INC., et al., *

*

Plaintiffs, *

*

v. * Case No. 1:22-cv-11091-IT

*

THE UNITED STATES DEPARTMENT *

OF THE INTERIOR, et al., *

*

Defendants, *

*

and *

*

VINEYARD WIND 1, LLC, *

*

Intervenor-Defendant. *

* * * * * * * * * * * * * * * * * * * * * * * * *

RESPONSIBLE OFFSHORE *

DEVELOPMENT ALLIANCE, *

*

Plaintiff, *

* Case No. 1:22-cv-11172-IT

v. *

*

UNITED STATES DEPARTMENT *

OF THE INTERIOR, et al., *

*

Defendants, *

*

and *

*

VINEYARD WIND 1, LLC, *

*

Intervenor-Defendant. *

MEMORANDUM & ORDER

October 12, 2023

TALWANI, D.J.

Plaintiffs Seafreeze Shoreside, Inc. (“Seafreeze Shoreside”), Long Island Commercial

Fishing Association, Inc. (“LICFA”), XIII Northeast Fishery Sector, Inc. (“Sector XIII”),

Heritage Fisheries, Inc. (“Heritage Fisheries”), Nat. W., Inc. (“Nat. W.”) and Old Squaw

Fisheries, Inc. (“Old Squaw”) (collectively, the “Seafreeze Plaintiffs”) and Plaintiff Responsible

Offshore Development Alliance (“Alliance”) brought the above-captioned lawsuits challenging

actions taken by several federal agencies and associated officials in the approval of an offshore-

wind energy project to be constructed and operated by Intervenor-Defendant Vineyard Wind 1

LLC (“Vineyard Wind”) in the Outer Continental Shelf off the coast of Martha’s Vineyard and

Nantucket, Massachusetts (the “Vineyard Wind Project” or the “Project”).1

Before the court in a consolidated proceeding are cross-motions for summary judgment in

Seafreeze, 1:22-cv-11091, see Plaintiffs’ Motion for Summary Judgment, Doc. No. 66,

Defendants’ Motion for Summary Judgment, Doc. No. 72, Vineyard Wind’s Motion for

Summary Judgment, Doc. No. 86; and in Responsible, 1:22-cv-11172, see Plaintiff’s Motion for

Summary Judgment, Doc. No. 52, Defendants’ Motion for Summary Judgment, Doc. No. 59,

Vineyard Wind’s Motion for Summary Judgment, Doc. No. 73. For the reasons that follow,

Plaintiffs’ Motions for Summary Judgment are DENIED and Defendants’ and Vineyard Wind’s

Motions for Summary Judgment are GRANTED.

1 Seafreeze Shoreside, Inc., et al. v. The United States Dept. of the Interior, et al., 1:22-cv-11091,

and Responsible Offshore Development Alliance v. United States Dept. of the Interior, et al.,

1:22-cv-11172, are referred to herein by their respective case numbers.

Two other challenges to the Project were filed in this District and are now on appeal. See Melone

v. Coit, et al., 1:21-cv-11171-IT, appeal docketed, No. 23-1736 (1st Cir. Sept. 8, 2023);

Nantucket Residents Against Turbines et al. v. U.S. Bureau of Ocean Energy Mgmt., 1:21-cv-

11390-IT, appeal docketed, No. 23-1501 (1st Cir. June 13, 2023), (together “the Related

Actions”).

2

I. Background

A. Procedural Background

The Procedural Background is set forth in detail in the court’s Memorandum and Order,

1:22-cv-11091, Doc. No. 137; 1:22-cv-11172, Doc. No. 104, denying Plaintiffs’ Motions to

Strike Documents from and Supplement the Administrative Record, 1:22-cv-11091, Doc. No.

56; 1:22-cv-11172, Doc. No. 43, and is incorporated by reference herein.

B. Background Concerning the Project

The Background Concerning the Project is also set forth in detail in the court’s

Memorandum and Order, 1:22-cv-11091, Doc. No. 137; 1:22-cv-11172, Doc. No. 104, and is

incorporated by reference herein. The Background Concerning the Project is derived from the

Administrative Record common to the pending challenges and the Related Actions.2

The following further background concerning the Project is also drawn from the

Administrative Record, is specific to the pending challenges, and was not at issue in the Related

Actions.

In considering Vineyard Wind’s application for a permit under Section 404 of the Clean

Water Act (“Section 404 Permit”) pertaining to the discharge of dredged and fill materials that

would occur along a 23.3 mile long corridor as part of Vineyard Wind’s installation of the wind

energy facility, electronic service platforms, connections between the wind turbine generators,

2 Certified Indices of the Administrative Record and addenda were docketed electronically, see

1:22-cv-11091, Federal Defendants’ Notices, Doc. Nos. 26, 30, 34, 36; 1:22-cv-11172, Federal

Defendants’ Notices, Doc. Nos. 17, 23; portions of the Administrative Record reflected in the

parties briefing are docketed electronically as part of the parties’ Joint Appendices filed in

connection with the cross-motions for summary judgment, 1:22-cv-11091, Doc. Nos. 104, 105;

1:22-cv-11172, Doc. Nos. 97, 98.

3

service platforms, and export cables, the Army Corps of Engineers (“Corps”) considered the

practicability of the following alternatives to the proposed Vineyard Wind Project: (a) one no-

action alternative; (b) a largely land-based alternative; (c) alternatives that would bring the cable

on shore in a different location; (d) two off-site alternatives in other zones of the ocean; and (e)

seven different on-site alternatives identified by Bureau of Ocean Energy Management

(“BOEM”) in the Environmental Impact Statement (“Final EIS”). Joint Record of Decision

(“Joint ROD”), BOEM_0076799 at -6830-31.

The Corps stated that in order to consider an alternative “practicable,” the alternative

“must be available, achieve the overall project purpose (as defined by USACE) and be feasible

when considering cost, logistics, and existing technology.” Id.

In issuing the Section 404 Permit to Vineyard Wind, the Corps imposed certain “Special

Conditions” on Vineyard Wind as the permittee, including compliance with all “mandatory terms

and conditions to implement the reasonable and prudent measures that are associated with

‘incidental take’ that is also specified in the [Biological Opinion (‘BiOp’)].” The Permit further

specified that the Permit is conditional on Vineyard Wind’s “compliance with all of the

mandatory terms and conditions associated with incidental take of the attached [BiOp], and any

future [BiOp] that replaces it, which terms and conditions are incorporated by reference into this

[P]ermit.” Dep’t of Army Permit, USACE_AR_012635 at -36.

C. Plaintiffs’ Pending Claims

In reviewing the pending motions, the court considers the following claims asserted by

Plaintiffs.

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1. Claims under the Administrative Procedure Act (“APA”) for Violations of the

Endangered Species Act

Plaintiffs allege that Defendant National Marine Fisheries Service (“NMFS”) violated

Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, and attendant regulations

by failing during the 2020 biological consultation process (i) to consider the cumulative effects

of the proposed Project to endangered species or their habitat (1:22-cv-11091, 9th Claim for

Relief), or (ii) to inform BOEM of alternatives to the proposed Project that would avoid harming

endangered species (1:22-cv-11091, 10th Claim for Relief), and that Defendants violated the

ESA and its implementing regulations by approving the Vineyard Wind Construction Operations

Plan (“COP”) and issuing the Section 404 Permit without a valid BiOp (1:22-cv-11172, Count

3).3

2. Claims under the APA for Violations of the Clean Water Act

Next, Plaintiffs allege that the Corps violated the Clean Water Act (“CWA”), 33 U.S.C.

§ 1251, et seq., and attendant regulations in issuing the Section 404 Permit pertaining to the

dredge and fill activities associated with the Project by (i) failing to review practicable

3 The Seafreeze Plaintiffs’ ESA claims set forth in their 6th, 7th, 8th, 11th, 12th, 13th, 14th, 15th,

and 16th Claims for Relief, 1:22-cv-11091, Complaint, Doc. No. 1, and portions of the

Alliance’s Count 3 asserting Defendants violated the ESA by (i) approving minimal mitigation

measures to protect the safety of endangered species, and (ii) failing to rely on the best scientific

and commercial data available, 1:22-cv-11172, Complaint, Doc. No. 1, are waived where neither

the Seafreeze Plaintiffs nor the Alliance briefed these claims. And although Seafreeze Shoreside

and the Alliance submitted 60-day notice of intent to sue letters as required under the ESA to

commence a citizen-suit, 16 U.S.C. § 1540(g)(2)(A)(i), those letters did not assert any violations

pertaining to the 2021 BiOp. Accordingly, Plaintiffs’ ESA challenges to the BiOp are limited to

the 2020 BiOp.

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alternatives to the Project outside of the Lease Area4 (1:22-cv-11091, 17th Claim for Relief;

1:22-cv-11172, Counts 2.2, 2.3), and (ii) failing to consider the cumulative effects of multiple

similar projects in issuing the Section 404 Permit (1:22-cv-11172, Count 2.4).5

3. Claims under the APA for Violations of the Marine Mammal Protection Act

Next, Plaintiffs allege that NMFS violated the Marine Mammal Protection Act

(“MMPA”), 16 U.S.C. § 1371, and attendant regulations in issuing the Incidental Harassment

Authorization (“IHA”) (i) by failing to provide evidence that the Project will only affect “small

numbers,” have a “negligible impact” on marine mammal species, or be completed within one

year of issuance of the IHA (1:22-cv-11091, 22nd Claim for Relief), and (ii) by improperly

relying on defects in the Corps’ CWA review, rendering the issuance of the IHA arbitrary and

capricious (1:22-cv-11172, Count 5).6

4. Claims under the APA for Violations of the National Environmental

Protection Act

Next, Plaintiffs allege that Defendants violated various provisions of the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, and attendant regulations throughout the

Project review process by:

4 The Lease Area covers the 166,886 acres of the Outer Continental Shelf leased by BOEM to

Vineyard Wind on April 1, 2015. See 1:22-cv-11172, Mem. & Order 5, Doc. No. 104.

5 The Seafreeze Plaintiffs’ CWA claims set forth in their 18th, 19th, and 20th Claims for Relief,

1:22-cv-11091, Complaint, Doc. No. 1, and the Alliance’s CWA claims set forth in Counts 2.1,

2.5, and 2.6, 1:22-cv-11172, Complaint, Doc. No. 1, are also waived where neither the Seafreeze

Plaintiffs nor the Alliance briefed these claims.

6 The Seafreeze Plaintiffs’ MMPA claim set forth in their 21st Claim for Relief, 1:22-cv-11091,

Complaint, Doc. No. 1, is also waived where neither the Seafreeze Plaintiffs nor the Alliance

briefed this claim.

6

(i) defining the purpose of the Action in connection with the Vineyard Wind

COP too narrowly (1:22-cv-11091, 23rd Claim for Relief; 1:22-cv-11172,

Count 4.4);

(ii) failing to properly consider a range of alternatives to the COP (1:22-cv-

11091, 24th Claim for Relief; 1:22-cv-11172, Count 4.1);

(iii) failing to comply with requirements for analyzing cumulative impacts of

the Project (1:22-cv-11091, 25th Claim for Relief; 1:22-cv-11172, Count

4.2);

(iv) failing to take reasonable steps considering the lack of information

relevant to reasonably foreseeable significant adverse impacts (1:22-cv-

11091, 26th Claim for Relief);

(v) limiting the scope of the Final EIS to the Vineyard Wind Project Area

(1:22-cv-11091, 27th Claim for Relief);

(vi) failing to make diligent efforts to involve the public in the NEPA process

(1:22-cv-11091, 28th Claim for Relief);

(vii) inadequately addressing and disclosing comments submitted by the public

(1:22-cv-11091, 29th, 30th Claims for Relief; 1:22-cv-11172, Count 4.5);

(viii) failing to prepare an EIS prior to issuing the Lease (1:22-cv-11091, 31st

Claim for Relief; 1:22-cv-11172, Count 4.6);

(ix) improperly segmenting the NEPA analysis (1:22-cv-11091, 32nd Claim

for Relief; 1:22-cv-11172, Count 4.6);

(x) relying on outdated NEPA regulations (1:22-cv-11091, 33rd Claim for

Relief; 1:22-cv-11172, Count 4.7);

(xi) withdrawing the EIS and reinitiating it without supplementing to account

for design changes (1:22-cv-11172, Count 4.3);

(xii) failing to consider the impacts of climate change (1:22-cv-11172, Count

4.8).

5. Claims under the APA for Violations of the Outer Continental Shelf Lands Act

Finally, Plaintiffs have asserted that Defendants have violated the Outer Continental

Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1337, in connection with the issuance of the Vineyard

Wind Lease and review of the Vineyard Wind COP by (i) adopting and applying the “Smart

from the Start” Initiative to the leasing process in violation of 43 U.S.C. § 1337(p)(4)’s

requirement that BOEM consider a set list of criteria (1:22-cv-11091, 1st, 2nd, and 3rd Claims

for Relief); (ii) resuming review of the COP after Vineyard Wind withdrew and resubmitted it in

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January 2021 (1:22-cv-11091, 4th Claim for Relief); and (iii) adopting and approving the COP

without considering and providing for the factors set forth in 43 U.S.C. § 1337(p)(4) (1:22-cv-

11091, 5th Claim for Relief; 1:22-cv-11172, Counts 1.1, 1.2, 1.7).7

II. Standard of Review

Under Federal Rules of Civil Procedure 56(a), summary judgment is appropriate when

“the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” A fact is material when, under the governing substantive

law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Baker v. St. Paul Travelers, Inc., 670 F.3d 119, 125 (1st Cir. 2012). A dispute is genuine

if a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.

The moving party bears the initial burden of establishing the absence of a genuine dispute

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party

establishes the absence of a genuine dispute of material fact, the burden shifts to the non-moving

party to set forth facts demonstrating that a genuine dispute of material fact remains. Anderson,

477 U.S. at 250.

The non-moving party cannot oppose a properly supported summary judgment motion by

“rest[ing] upon the mere allegations or denials of [the] pleading[s].” Id. at 248. Disputes over

facts “that are irrelevant or unnecessary” will not preclude summary judgment. Id. When

7 The Alliance’s OCSLA claims set forth in Counts 1.3, 1.4, 1.5, 1.6, 1.8, 1:22-cv-11172,

Complaint, Doc. No. 1, are also waived where neither the Seafreeze Plaintiffs nor the Alliance

briefed these claims.

The Alliance has conceded its claim under the Jones Act. 1:22-cv-11172, Hearing Tr. 7:4-10,

Doc. No. 101.

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reviewing a motion for summary judgment, the court must take all properly supported evidence

in the light most favorable to the non-movant and draw all reasonable inferences in the non-

movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). “Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.”

Anderson, 477 U.S. at 255.

The fact that the parties have filed cross motions does not alter these general standards;

rather the court reviews each party’s motion independently, viewing the facts and drawing

inferences as required by the applicable standard, and determines, for each side, the appropriate

ruling. See Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996) (noting

that cross-motions for summary judgment do not “alter the basic Rule 56 standard” but rather

require the court “to determine whether either of the parties deserves judgment as a matter of law

on facts that are not disputed”).

A summary judgment motion has a “special twist in the administrative law context.”

Boston Redevelopment Auth. v. Nat. Park Serv., 838 F.3d 42, 47 (1st Cir. 2016) (quotations

omitted). In an APA action, a motion for summary judgment serves as “a vehicle to tee up a case

for judicial review and, thus, an inquiring court must review an agency action not to determine

whether a dispute of fact remains but, rather, to determine whether the agency action was

arbitrary and capricious.” Id. (citing cases); see also 5 U.S.C. § 706(2)(A) (“The reviewing court

shall…hold unlawful and set aside agency action…found to be…arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law[.]”).

Because the APA affords great deference to agency decision-making and agency actions

are presumed valid, “judicial review [under the APA], even at the summary judgment stage, is

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narrow.” Assoc’d Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997) (citing

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)). Courts should

“uphold an agency determination if it is ‘supported by any rational view of the record.’” Marasco

& Nesselbush, LLP v. Collins, 6 F.4th 150, 172 (1st Cir. 2021) (quoting Atieh v. Riordan, 797

F.3d 135, 138 (1st Cir. 2015)). Even where an inquiring court disagrees with the agency’s

conclusions, the court cannot “‘substitute its judgment for that of the agency.’” Boston

Redevelopment Auth., 838 F.3d at 47 (quoting Assoc’d Fisheries, 127 F.3d at 109). Rather, an

agency’s action should only be vacated where the agency “has relied on factors which Congress

had not intended it to consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the agency, or is

so implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007)

(quotations omitted).

III. Standing

Defendants challenge Plaintiffs’ standing to bring claims under NEPA while Vineyard

Wind challenges Plaintiffs’ standing to bring claims under NEPA, ESA, and MMPA.8 The court

considers first the evidence in the record relating to Plaintiffs’ standing, and then whether

Plaintiffs have standing to bring their claims under each of the challenged statutes, addressing

constitutional issues first and then statutory issues.

8 Vineyard Wind also challenged the Seafreeze Plaintiffs’ standing to bring a claim under the

CWA but withdrew that argument at the summary judgment hearing. 1.22-cv-11091, Hearing Tr.

13:5-16, Doc. No. 112.

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A. Evidence Relating to Plaintiffs’ Standing9

1. Old Squaw, Heritage Fisheries, and Nat. W.

Seafreeze Plaintiffs Old Squaw, Heritage Fisheries, and Nat. W. (the “Commercial

Fishing Entities”) are each commercial fishing companies that engage in trawl fishing10 for

squid.

a. Evidence Offered as to Economic Injury

Declarant David Aripotch, the owner and president of Old Squaw and captain of its boat,

the F/V Caitlin & Mairead, states that the F/V Caitlin & Mairead trawl fishes in the Atlantic

Ocean off the coast of Massachusetts to the coast of North Carolina. 1:22-cv-11091, Aripotch

Decl. ¶¶ 2, 5, 11, Doc. No. 66-1. Aripotch states that the F/V Caitlin & Mairead typically takes

9 Vineyard Wind opposes numerous statements in Plaintiffs’ Statement of Undisputed Material

Facts, 1:22-cv-11091, Doc. No. 66. See Vineyard Wind Resp. to Seafreeze Pls.’ Statement of

Undisp. Material Facts, Doc. No. 88. First, Vineyard Wind opposes many statements supported

only by affidavits. See 1:22-cv-11091, Intervenor’s Opening Mem. 28-31, Doc. No. 87

(disputing the admissibility of statements such as those concerning Seafreeze Shoreside’s

interests, goals, and purported injuries). Where Fed. R. Civ. P. 56(c)(4) permits affidavits or

declarations “made on personal knowledge [that] set out facts that would be admissible in

evidence, and [that] show that the affiant or declarant is competent to testify on the matters

stated,” the court considers the evidentiary weight of these submissions under this standard for

purposes of standing, as discussed infra. Second, Vineyard Wind objects to Plaintiffs’ numerous

citations outside of the Administrative Record where Plaintiffs have not offered those materials

through a motion to supplement the Record. Id. at 31-33. Here, the court does not consider

statements relying on materials outside of the Administrative Record where Plaintiffs have not

addressed these in any motion to supplement the Record or otherwise offered a basis for the

court to consider extra-record material. Finally, Vineyard Wind asserts numerous statements of

fact should be struck where Plaintiffs mischaracterize the Administrative Record. The court

looks directly to the Administrative Record, as discussed in its Memorandum and Order, 1:22-

cv-11172, Doc. No. 137, rather than the parties’ characterizations of the Administrative Record.

10 Trawl fishing involves pulling a net towed by steel wires and spread open by steel doors to

harvest squid and other fish at the ocean bottom. 1:22-cv-11091, Decl. of David Aripotch

(“Aripotch Decl.”) ¶ 10, Doc. No. 66-1; 1:22-cv-11091, Decl. of Thomas E. Williams, Sr.

(“Williams Sr. Decl.”) ¶ 15, Doc. No. 66-2.

11

25-40 trips per year to the Lease Area for squid. Id. at ¶¶ 8-9. Aripotch states further that, in a

typical year, Old Squaw generates $175,000-$350,000 in annual revenues from fishing

expeditions for squid in the Lease Area and that this accounts for roughly 30% of Old Squaw’s

revenue in a given year. Id. at ¶ 12. Aripotch states that Old Squaw will lose this revenue if

construction and operation of the Project go forward as contemplated by the COP. Id. at ¶ 19.

Aripotch states that the spacing of the Vineyard Wind turbines “will not allow for safe

transit lanes in the Vineyard Wind area for the F/V Caitlin & Mairead” because one nautical mile

of distance “is not enough room to risk getting through[.]” Id. at ¶ 14. Aripotch also states that

the wind turbines, when operational, will interfere with marine radar. Id. at ¶ 15. Aripotch

contends that commercial fishing will become untenable for his boat in the Lease Area because

trawl fishing gear will become entangled. Id.11 Finally, Aripotch states that the F/V Caitlin &

Mairead will be unable to fish in the Wind Energy Area during the Project’s construction

because of the safety risks associated with certain construction activities, such as the installation

of cables or installation of armoring with boulders, and that those safety risks will remain after

the construction is complete and the Project is operational. Id. at ¶¶ 16-17.

Aripotch states that the risks posed to the F/V Caitlin & Mairead will also disrupt and

displace squid in the Area and impact the marine ecosystem in ways that will further impact Old

Squaw’s ability to fish in the Lease Area. Id. at ¶ 20.12 Aripotch states that, because of the Lease

11 Aripotch relies on the Final EIS Vol. 1, BOEM_0068434 at -717, -18, -22, --224, -225, which

states that entanglement is a possibility that could impact fishing businesses.

12 Additionally, Aripotch states that it is his understanding that the Vineyard Wind Project will

result in environmental and ecological harms to numerous marine species. Id. at ¶¶ 29-30.

Aripotch’s declaration does not show, however, that he is competent to testify to this assertion.

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issuance and COP approval, Old Squaw will no longer be able to fish for squid in the Lease Area

and will lose approximately 30% of its revenue as a result. Id. at ¶ 19.

Declarant Thomas E. Williams, Sr., the owner and President of Heritage Fisheries and

Nat. W., states that, in a typical year, Heritage Fisheries, which owns and operates the F/V

Heritage, generates $290,000 in annual revenues from trawl fishing for squid in the Lease Area,

accounting for approximately 30% of Heritage Fisheries total annual revenues in any given year.

1:22-cv-11091, Williams Sr. Decl. ¶¶ 2, 4-5, 17, Doc. No. 66-2. Williams states further that Nat.

W., which owns and operates the F/V Tradition, generates roughly $490,000 in annual revenues

from trawl fishing for squid in the Lease Area, accounting for approximately 65% of Nat. W.’s

total annual revenues in any given year. Id. at ¶¶ 5, 18. Like Aripotch, Williams states that his

companies will be unable to engage in trawl fishing in the Lease Area because (i) the spacing of

the turbines will not allow for safe passage, (ii) the turbines will interfere with vessel radar,

making passage more dangerous for his companies’ boats, and (iii) protections around cables and

foundations will cause gear to become tangled. Id. at ¶¶ 20, 23. Williams states that the Vineyard

Wind Project will cause both Heritage Fisheries and Nat. W. to lose out on the annual revenues

attributable to fishing in the Lease Area. Id. at ¶ 22. 13

13 Williams also contends that the construction activities and operation of the turbines will affect

the water quality in the Lease Area and beyond, which will displace not only squid, but other

marine life, affecting the entire ecosystem and further impacting Heritage Fisheries and Nat.

W.’s abilities to fish in the Lease Area. Id. at ¶ 24. Williams states this “impact” constitutes

pollution of the waters and degradation of all living things in the waters. Id. Williams’

declaration does not show, however, that he is competent to testify to these assertions.

13

Vineyard Wind disputes Plaintiffs’ representations regarding the frequency and duration

of fishing trips by Plaintiffs Old Squaw, Heritage Fisheries, and Nat. W. See 1:22-cv-11091,

Intervenor’s Opening Mem. 3 n.1, Doc. No. 87. Vineyard Wind offers the expert opinion of R.

Douglass Scott, PhD., P. Eng., a Principal with W.F. Baird & Associates Ltd., reflecting, based

on Automatic Identification System (“AIS”) tracking data, that the total time between January

2016 and 2022 spent in the Lease Area by Old Squaw’s vessel (the F/V Caitlin & Mairead) was

21.2 hours, by Heritage Fisheries’ vessel (the F/V Heritage) was 0.4 hours, and by Nat. W.’s

vessel (the F/V Tradition) was 6.2 hours, for a total time of 27.7 hours over six years. See 1:22-

cv-11091, Vineyard Wind Resp. to Seafreeze Pls.’ Statement of Undisp. Material Facts ¶¶ 100-

102, Doc. No. 88; 1:22-cv-11091, Decl. of R. Douglas Scott in Supp. of Intervenor’s Cross-Mot.

for Summ. J. and in Opp’n to Pls. Mot. for Summ. J., Doc. No. 86-1.14

Defendants also dispute that the Project will result in the cessation of commercial fishing

in the Lease Area. 1:22-cv-11091, Fed. Defs.’ Resp. to Seafreeze Pls.’ Statement of Undisp.

Material Facts ¶¶ 9-11, Doc. No. 76 (citing BOEM Info. Mem. dated May 21, 2021,

BOEM_0076922 at -942-44 (reflecting that “the navigational risk assessment prepared for the

Project shows that it is technically feasible to navigate and maneuver fishing vessels and mobile

gear through the WDA.”) and Final EIS, Vol. 1 BOEM_0068434 at -68718 (discussing impacts

in the WDA that may impact fishing activities) and BOEM_0068743-44 (acknowledging

concerns from commercial fishing interests about the ability to safely navigate the WDA but

14 Plaintiffs dispute that AIS data is an accurate reflection of their fishing activities in the Lease

Area where none of the Plaintiffs’ vessels are required to carry or use AIS, and, instead,

voluntarily use AIS, but typically not when fishing. See 1:22-cv-11091, Third Decl. of David

Aripotch ¶¶ 4-6, Doc. No. 90-3; 1:22-cv-11091, Second Decl. of Thomas E. Williams, Sr. ¶¶ 8-9,

Doc. No. 90-4.

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noting, “fishing vessels, including those involved in line, trawl, and drag fishing, would be able

to work in the area; however vessel operators would need to take the [wind turbine generators]

and [electrical service platforms] into account as they set their courses[.]”). Vineyard Wind states

that the Lease Area was selected to minimize conflicts with commercial fishing and because it

does not have high relative revenue as compared to nearby waters. See 1:22-cv-11091, Vineyard

Wind Resp. to Seafreeze Pls.’ Statement of Undisp. Material Facts ¶¶ 9-11, Doc. No. 88 (citing

Final EIS, Vol. 1 for proposition that, during the leasing process, and in response to public

comments, BOEM identified “high value fishing areas…and removed [them] prior to leasing.”

Final EIS Vol. 1, BOEM_0068434 at -725).

In sum, there is a dispute of material facts as to the extent of any economic harm that the

Commercial Fishing Entities may suffer. For purposes of Defendants’ and Intervenor’s Motions

for Summary Judgment, however, and considering the evidence in the light most favorable to the

Commercial Fishing Entities, the court finds that the Commercial Fishing Entities have

demonstrated that they trawl fish in the Lease Area and may lose an unquantified sum of the

revenue attributable to their trawl-fishing activities in the Lease Area.

b. Evidence Offered as to Non-Economic Injury

Aripotch states that, in addition to economic interests in the Lease Area, he also has

environmental and aesthetic interests in the Lease Area. He states that the Project will impact the

aesthetic and spiritual pleasures he derives from fishing in the Vineyard Wind Lease Area. 1:22-

cv-11091, Aripotch Decl. ¶ 21, Doc. No. 66-1. In particular, while engaged in commercial

fishing in the Vineyard Wind Lease Area, Aripotch tries to bring his camera to capture the

wildlife. Id. at ¶ 25. He observes right whales and other marine life. Id. He plans to continue

15

fishing in the Lease Area, and observing marine mammals, “through the foreseeable future if the

Vineyard Wind lease and COP are vacated.” Id. at ¶ 28.15

Williams states that the impact the Vineyard Wind Project will have on the Vineyard

Wind Lease Area will harm not only his business but also the aesthetic and emotional pleasures

he derives from fishing. 1:22-cv-11091, Williams Sr. Decl. ¶ 25, 28, Doc. No. 66-2.16 Williams’

sons, who serve as captains of the F/V Heritage and the F/V Tradition, each likewise states that

he takes pleasure in observing marine life, including right whales, while fishing in the Lease

Area. 1:22-cv-11091, Decl. of Thomas H. Williams ¶ 25, Doc. No. 66-3; see 1:22-cv-11091,

Decl. of Aaron Williams ¶ 27, Doc. No. 66-4.

Defendants dispute that statements of individual owners’ aesthetic and emotional

interests can be imputed to the Plaintiff corporations. See 1:22-cv-11091, Fed. Defs.’ Opening

Mem. 8, Doc. No. 73. Defendants also assert that the record directly conflicts these individuals’

assertions where (i) NMFS has concluded there will be no adverse impacts to right whales other

than temporary harassment of a small number of right whales due to exposure to pile driving

noises, and (ii) that the Corps considered the Project’s effects on food and fiber production as

part of its public interest review and determined that the Project would have no effect on the food

15 Aripotch also states that he fears the Project will destroy the area that his family, and many

others, depend on for their food supply. Id. at ¶ 24. Aripotch’s affidavit does not show that he is

competent to testify as to the alleged destruction of the area.

16 Williams also states that it is his understanding that the impacts of the Project “will result in a

sizeable overall decrease in the food supply” that will negatively affect food availability for all

Americans, including his family. 1:22-cv-11091, Williams Sr. Decl. ¶ 28, Doc. No. 66-2. Again,

Williams’ affidavit does not show that he is competent to testify to these assertions.

16

supply. 1:22-cv-11091, Fed. Defs.’ Resp. to Seafreeze Pls.’ Statement of Undisp. Material Facts

¶¶ 167, 120, Doc. No. 76.

The court concludes the Commercial Fishing Entities have not demonstrated any non-

economic injury where the competent evidence proffered relates to the interests of their owners

and not to the Commercial Fishing Entities themselves.

2. Seafreeze Shoreside

Plaintiff Seafreeze Shoreside is a seafood dealer located in Narragansett, Rhode Island.

1:22-cv-11091, Decl. of Arthur Ventrone (“Ventrone Decl.”) ¶ 4, Doc. No. 66-7; see also 1:22-

cv-11091, Decl. of Meghan Lapp (“Lapp Decl.”) ¶ 3, Doc. No. 66-8.

a. Evidence Offered as to Economic Injury

Declarant Arthur Ventrone, Seafreeze Shoreside’s Treasurer, states that Seafreeze

Shoreside purchases, sells, and processes fish product, primarily squid. 1:22-cv-11091, Ventrone

Decl. ¶ 2, 4, Doc. No. 66-7. Ventrone states that Seafreeze Shoreside generates substantial

revenue from squid seafood product brought in by commercial fishermen from the Lease Area

and that, while revenues vary annually, catches from the Lease Area are “a consistently high

percentage of [Seafreeze Shoreside’s] total annual revenues year after year.” Id. at ¶ 10.

Ventrone states that, in 2016, 19% of Seafreeze Shoreside’s total revenue, or $1.7 million, was

attributable to catches in the “Vineyard Wind area.” Id. Ventrone states that it is his

understanding that commercial fishing in the Lease Area will “become untenable” as a result of

the Vineyard Wind Project, and that, as a result, Seafreeze Shoreside will process less squid, and

will experience a “substantial loss of revenues.” Id. at ¶¶ 8-11. Ventrone also states that it is his

understanding that squid will be displaced from the Lease Area as a result of the Project’s impact

17

to squid habitat, and that, even if commercial fishermen could continue fishing in the Area, the

catch would be “severely reduced or nonexistent.” Id. at ¶ 9.17

Declarant Meghan Lapp, Seafreeze Shoreside’s Fisheries Liaison and Assistant General

Manager, states that the pile driving and operational noise from the Project will negatively

impact the habitats longfin squid and other species, and thus impact Seafreeze Shoreside. 1:22-

cv-11091, Lapp Decl. ¶¶ 2, 45-50, Doc. No. 66-8.

Defendants dispute that the construction and operation of the Vineyard Wind Project will

result in the cessation of commercial fishing in the Vineyard Wind Lease Area. 1:22-cv-11091,

Fed. Defs.’ Resp. to Seafreeze Pls.’ Statement of Undisp. Material Facts ¶ 6, Doc. No. 76 (citing

BOEM Info. Mem. dated May 21, 2021, BOEM_0076922 at -942-44, Final EIS, Vol. 1

BOEM_0068434 at -718 and -743-44). Defendants also dispute that the Project will have adverse

impacts on the squid habitat where Plaintiffs’ only support for this proposition are the statements

of employee declarants, who Defendants contend offer opinions and understanding in lieu of

expertise, and Seafreeze Shoreside’s own comments in the Administrative Record. See id. at

¶ 166.

Vineyard Wind disputes that Seafreeze Shoreside derives substantial revenue from the

Lease Area, stating that the Lease Area was selected to minimize conflicts with commercial

fishing and because it does not have high relative revenue as compared to nearby waters. See

1:22-cv-11091, Vineyard Wind Resp. to Seafreeze Pls.’ Statement of Undisp. Material Facts ¶ 6,

17 Although Ventrone has not demonstrated that he is competent to testify as to any reduction in

commercial fishing in the Lease Area, the Aripotch and Williams Sr. affidavits detailed above

regarding their anticipated reduction in trawling for squid, are sufficient to allow the court to

consider Ventrone’s further statement that Seafreeze Shoreside will process less squid.

18

Doc. No. 88 (citing Final EIS, Vol. 1 for proposition that, during the leasing process, and in

response to public comments, BOEM identified “high value fishing areas…and removed [them]

prior to leasing.” Final EIS Vol. 1, BOEM_0068434 at -725).

As above, there is a dispute of material facts as to the extent of any economic harm that

Seafreeze Shoreside may suffer. For purposes of Defendants’ and Intervenor’s Motions for

Summary Judgment, however, and considering the evidence in the light most favorable to

Seafreeze Shoreside, the court finds that Seafreeze Shoreside has demonstrated that its suppliers

trawl fish in the Lease Area and that Seafreeze Shoreside may lose an unquantified sum of the

revenue attributable to the loss of its suppliers’ trawl-fishing activities in the Lease Area.

b. Evidence offered as to Non-Economic Injury

Lapp states that “Seafreeze [Shoreside] has a keen interest in protecting the purity and

cleanliness” of the Outer Continental Shelf, not only for economic reasons, but also because

“environmental degradation” from the Vineyard Wind Project would take away “from Seafreeze

[Shoreside] employees’ aesthetic, psychological, emotional, and spiritual pleasures of working as

part of a fishing community reliant on those waters.” 1:22-cv-11091, Lapp Decl. ¶ 52, Doc. No.

66-8.

Vineyard Wind disputes that Plaintiffs have asserted any of its own legal rights and

interests. See 1:22-cv-11091, Intervenor’s Opening Mem. 4-5, Doc. No. 87.

As with the Commercial Fishing Entities, Seafreeze Shoreside has not shown that

Seafreeze Shoreside, as opposed to its employees, have suffered any non-economic injuries

where it has offered no evidence to that effect.

19

3. LICFA, Sector XIII, and the Alliance

Seafreeze Plaintiffs LICFA and Sector XIII, and Responsible Plaintiff Alliance

(collectively, the “Associations”), are associations representing commercial fishing interests.

a. Evidence Offered as to Associations’ Membership and Purposes

LICFA represents over 150 fishing businesses, boats, and fishermen from multiple ports

on Long Island, New York. 1:22-cv-11091, Decl. of Bonnie Brady (“Brady Decl.”) ¶ 3, Doc. No.

66-6. LICFA and its members “support extensive cooperative scientific research to better

understand the marine environment and fisheries management.” Id. at ¶ 4.

Sector XIII is a private organization of commercial fishermen that monitors compliance

with fishing permits and supports the commercial fishing industry along the Atlantic Coast. 1:22-

cv-11091, Decl. of John Haran (“Haran Decl.”) ¶ 3, Doc. No. 66-5.

Plaintiff Alliance is a not-for-profit trade association headquartered in Washington, D.C.,

comprised of fishing associations and fishing companies, whose members own and operate more

than 120 vessels and conduct business in more than 30 fisheries throughout the country. 1:22-cv-

11172, Joint SOF ¶ 1, Doc. No. 99; 1:22-cv-11172, Decl. of Anne Hawkins (“Hawkins Decl.”)

¶ 2, Doc. No. 53-1. One of the Alliance’s members is Town Dock, which is one of the largest

producers of squid in the United States. 1:22-cv-11172, Decl. of Katie Almeida (“Almeida

Decl.”) ¶¶ 1-2, Doc. No. 77-2. The Alliance is committed to improving the compatibility of new

offshore development with its members’ fishing-related businesses. 1:22-cv-11172, Hawkins

Decl. ¶ 2, Doc. No. 53-1. Hawkins states that Defendants’ approval of the Vineyard Wind

Project has “frustrated the very purpose for which the Alliance was formed[.]” Id. at ¶ 8.

20

b. Evidence offered as to Economic Injury

Each association offers as injury the economic injury of its members, primarily as

detailed above. See 1:22-cv-11091, Brady Decl. ¶¶ 6, 19-22, Doc. No. 66-6 (the presence and

good health of numerous species of marine life in the Lease Area is vital to LICFA members);

1:22-cv-11091, Second Decl. of David Aripotch (“2d Aripotch Decl.”) ¶ 4, Doc. No. 90-1

(Aripotch and Old Squaw are members of LICFA and LICFA represents Aripotch’s “economic .

. . interests as a commercial fisherman”); see also 1:22-cv-11091, Second Decl. of Bonnie Brady

(“2d Brady Decl.”) ¶ 4, Doc. No. 90-2 (“LICFA, as an association of commercial fishermen,

represents the economic . . . interests of David Aripotch in his capacity as a member of

LICFA.”); 1:22-cv-11091, Haran Decl. ¶¶ 3, 6, Doc. No. 66-5 (approximately 38 of Sector XIII’s

members operate their commercial fishing businesses in the Lease Area and the presence and

good health of numerous species of fish and other marine life in the Lease Area are vital to the

members of Sector XIII, who depend on the Lease Area for a substantial portion of their

revenues); id. at ¶¶ 7, 20 (Plaintiffs Heritage Fisheries and Nat. W. are members of Sector XIII

and Heritage Fisheries, Nat. W., and similarly situated Sector XIII members will experience

“substantial economic adverse impacts” as a result of the Vineyard Wind Project); id. at ¶ 11

(stating that the Vineyard Wind Project would force Sector XIII members who operate trawl

vessels to fish and travel outside of the “project area,” thereby increasing vessel traffic and

hazardous conditions outside of the Lease Area); id. at ¶ 18 (stating that the Vineyard Wind

Project will preclude members from fishing in the Lease Area, due to (i) the risk of entanglement

of trawl fishing gear, (ii) reduced navigational capabilities because of radar interference, and (iii)

increased risk of collision when navigating through Project transit lanes); 1:22-cv-11172, Second

Decl. of Anne Hawkins (“2d Hawkins Decl.”) ¶¶ 4-7, Doc. No. 77-1 (Old Squaw, Sector XIII,

21

LICFA, and Seafreeze Shoreside are members of the Alliance and will be harmed in the ways

identified by the Seafreeze Plaintiffs’ declarants); see also 1:22-cv-11172, Almeida Decl. ¶¶ 1-2,

4-5, Doc. No. 77-2 (Alliance member Town Dock is dependent on longfin squid, the Lease Area

is “on top of and adjacent to one of [Town Dock’s] most productive spring and summer longfin

squid grounds,” Town Dock’s vessels may be unable to tow their trawling gear through the

Lease Area safely and efficiently, and the noise from the Project will negatively impact the

longfin squid population, and ultimately, Town Dock’s business) (citing letter offered as part of

Town Dock’s comments on an adjacent wind project which references a Woods Hole

Oceanographic Institute study).

As discussed above, Defendants dispute that the Vineyard Wind Project will result in the

cessation of fishing activities in the Lease Area. Vineyard Wind disputes that members of the

Associations asserting “substantial” losses in revenue will experience such impacts where AIS

data reflects that LICFA member Old Squaw and Sector XIII members Heritage Fisheries

andNat. W. fished in the Lease Area for a collective 27.7 hours over six years.

Vineyard Wind also disputes that Alliance member Town Dock may have difficulty

navigating through the Lease Area with gear where it previously submitted comments reflecting

that Town Dock’s boats will continue to work in the wind energy areas with one nautical mile of

spacing between the turbines. See 1:22-cv-11172, Intervenor’s Reply 4 n.2, Doc. No. 93.

As above, there is a dispute of material facts as to the extent of any economic harm that

the Associations’ members may suffer. For purposes of Defendants’ and Intervenor’s Motions

for Summary Judgment and considering the evidence in the light most favorable to the

Associations, the court finds that the Associations have demonstrated that their members may

22

lose an unquantified sum of the revenue attributable to the loss of their or their suppliers’ trawl-

fishing activities in the Lease Area.

c. Evidence Offered as to Non-Economic Injury

Each association also offers as injury the non-economic injury of its members, primarily

as detailed above. See 1:22-cv-11091, 2d Aripotch Decl. ¶ 4, Doc. No. 90-1 (LICFA represents

Aripotch’s “environmental interests as a commercial fisherman”); see also 1:22-cv-11091, 2d

Brady Decl. ¶ 4, Doc. No. 90-2 (“LICFA, as an association of commercial fishermen, represents

the . . . environmental interests of David Aripotch in his capacity as a member of LICFA.”).

Whether that non-economic injury may be asserted by the Associations is discussed further

below.

B. Constitutional Standing

Vineyard Wind challenges Plaintiffs’ standing to bring their NEPA, ESA, and MMPA

claims as a constitutional issue, and Defendants and Vineyard Wind also challenge the

Associations’ standing. The court considers the challenges to standing under NEPA and MMPA

as a zone-of-interest question, which is addressed below. Here, the court considers first legal

principles concerning constitutional standing generally, then questions of associational standing,

and then Plaintiffs’ standing under ESA.

1. Applicable Law

The doctrine of standing is rooted in Article III of the Constitution, which confines

federal courts to the adjudication of actual “cases” and “controversies.” See U.S. Const. Art. III,

§ 2, cl. 1; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Standing consists of three

elements: “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

23

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016) (citing

Defs. of Wildlife, 504 U.S. at 560-61). Plaintiffs’ injury must be “‘concrete, particularized, and

actual or imminent; fairly traceable to the challenged action; and redressable by a favorable court

ruling.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v.

Geertson Seed Farms, 561 U.S. 139, 149 (2010)).

To establish the first element of standing, an injury-in-fact, a plaintiff must demonstrate

“an invasion of a legally protected interest” that is “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560 (quotations

omitted). “The particularization element of the injury-in-fact inquiry reflects the commonsense

notion that the party asserting standing must not only allege injurious conduct attributable to the

defendant but also must allege that he, himself, is among the persons injured by that conduct.”

Hochendoner v. Genzyme Corp., 823 F.3d 724, 731-32 (1st Cir. 2016).

Moreover, standing is “ordinarily substantially more difficult to establish,” where the

plaintiff is not the object of the action. Defs. of Wildlife, 504 U.S. at 562 (quotations omitted);

compare Maine Lobstermen Assoc. v. Nat. Marine Fish. Serv., 70 F.4th 582, 592-93 (D.C. Cir.

June 16, 2023) (concluding that the plaintiff lobstermen have standing to challenge a biological

opinion considering NMFS’ fishery licensing activities where they were the “object of the

action” and the biological opinion had “virtually determinative effect”). “The standing inquiry is

claim-specific: a plaintiff must have standing to bring each and every claim that she asserts.”

Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (citing Pagán v. Calderón, 448 F.3d 16,

26 (1st Cir. 2006)).

Because standing is not a “mere pleading requirement[] but rather an indispensable part

of the plaintiff’s case,” standing must be supported “with the manner and degree of evidence

24

required at the successive stages of the litigation.” Defs. of Wildlife, 504 U.S. at 561; see also

People to End Homelessness v. Develco Singles Apartments Assoc., 339 F.3d 1, 8 (1st Cir.

2003). While at the pleadings stage, “general factual allegations of injury” may suffice, and at

summary judgment, such allegations must be supported by affidavits which will be taken to be

true, where standing remains a controverted issue at trial, the specific facts establishing standing

“must be ‘supported adequately by the evidence adduced at trial.’” Id. (quoting Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 114, 115 n.31 (1979)).

2. Associational Standing

An association cannot establish standing to sue on behalf of its members unless (i) “at

least one of [its] members possesses standing to sue in his or her own right,” United States v.

AVX Corp., 962 F.2d 108, 116 (1st Cir. 1992), (ii) “the interests at stake are germane to the

organization’s purpose,” and (iii) “neither the claim asserted nor the relief requested requires

individual members’ participation in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 169 (2000).

Here, despite an initial challenge,18 there is no real dispute that the Associations may

assert the economic injuries of its commercial fishing members.

18 Defendants and Vineyard Wind initially asserted that the Alliance lacked standing to bring

claims on behalf of its members where it had not identified any members with Article III

standing. Defendants and Vineyard Wind withdrew this argument after the Alliance provided

additional declarations identifying members who operate fishing vessels in the Vineyard Wind

project area. See 1:22-cv-11172, Fed. Defs.’ Reply, Doc. No. 92; 1:22-cv-11172, Intervenor’s

Reply 1, Doc. No. 93.

Defendants and Vineyard Wind also asserted that the Alliance lacked standing to bring claims on

behalf of itself as a nonprofit trade organization. Where the Alliance has standing to raise the

economic claims of its members and does not assert claims distinct from those asserted on behalf

25

Plaintiffs argue that Seafreeze Plaintiff LICFA can also bring claims of noneconomic

injury on behalf of LICFA member David Aripotch. 1:22-cv-11091, Pls.’ Opp’n 12-14, Doc. No.

90. Defendants and Vineyard Wind challenge LICFA’s standing to assert the environmental

injuries of its members where it has not demonstrated environmental issues are germane to its

purpose. 1:22-cv-11091, Fed. Defs.’ Opening Mem. 8, Doc. No. 73; Fed. Defs.’ Reply 2, Doc.

No. 93; Intervenor’s Opening Mem. 6-7, Doc. No. 87.

Here, LICFA has not demonstrated that the interests at stake–Aripotch’s interests in

observing right whales and marine life–are germane to LICFA’s purpose of supporting fisheries

management. See Friends of the Earth, 528 U.S. at 169. Accordingly, LIFCA does not have

associational standing to assert any of Aripotch’s injuries based on the aesthetic and spiritual

pleasures he derives from fishing.

3. ESA (Seafreeze, 9th, 10th Claims for Relief; Responsible Count 3)

Plaintiffs assert that Defendants violated the ESA, where (i) NMFS failed to consider the

cumulative effects of the Project on endangered species or their habitat, 1:22-cv-11091,

Complaint, 9th Claim for Relief, Doc. No. 1; (ii) NMFS failed to inform BOEM of alternatives

to the approved Project that would avoid harming endangered species, id., 10th Claim for Relief;

and (iii) Defendants violated the ESA by approving the COP and Corps’ pollutant discharge

permit without a valid biological opinion in place, 1:22-cv-11172, Complaint, Count 3, Doc. No.

1.

of its members, the court need not address whether the Alliance has standing based on its status

as a nonprofit trade organization. See Horne v. Flores, 557 U.S. 433, 446-47 (2009).

26

The citizen-suit provision of the ESA grants “any person” the authority to commence a

civil suit to enforce a violation of any provision of the ESA. 16 U.S.C. § 1540 (g)(1). But this

“authorization of remarkable breadth,” does not obviate Plaintiffs’ obligations under Article III

of the Constitution to establish standing. Bennett v. Spear, 520 U.S. 154, 162-164 (1997).

Taking Plaintiffs’ claims in turn, the Seafreeze Plaintiffs allege that NMFS violated its

obligations under Section 7 of the ESA and attendant regulations in issuing the 2020 BiOp

without (i) considering the cumulative effects of the Project on endangered species, and (ii)

without informing BOEM of alternatives that would avoid harming endangered species.

Vineyard Wind asserts that Plaintiffs lack standing to bring claims against the superseded

Biological Opinion where they have not demonstrated any injury flowing from it, let alone

established causation or redressability. 1:22-cv-11091, Intervenor’s Opening Mem. 8, Doc. No.

87. As discussed above, considering the evidence in the light most favorable to the Plaintiffs,

Plaintiffs or their members may lose some revenue if the Commercial Fishing Entities (or

Seafreeze Shoreside’s suppliers) reduce their trawling for squid as a result of the construction

and operation of the Project but they have shown no noneconomic harm. Plaintiffs have not

demonstrated their particularized injury is in any way connected to the Project’s impact on any

endangered species. They also have not shown that they are the object of any action taken under

the ESA consultation process, nor that they are the object of any other challenged agency action

under the ESA connected to the Project. Nor do they have a demonstrated interest in the direct

agency action related to the ESA.19

19 Defendants argue that if the Seafreeze Plaintiffs have standing to assert their 9th and 10th

Claims for Relief challenging NMFS’ actions as part of the 2020 BiOp process, such challenge

would still be moot. See 1:22-cv-11091, Fed. Defs.’ Reply 38-39, Doc. No. 93. The court agrees

27

Similarly, although the Alliance alleges that both BOEM and the Corps permitted actions

without satisfying the requirements of the ESA, see 1:22-cv-11172, Plaintiff’s Opposition 24-25,

Doc. No. 77, the Alliance has only offered evidence to support that their members may lose

some revenue as a result of the construction and operation of the Project.

The relationship between the unquantified economic harm Plaintiffs will suffer as a result

of the Project’s possible physical impacts on Plaintiffs’ preferred trawl fishing area, and the

agency actions Plaintiffs are challenging—which are general procedural aspects of the 2020

biological consultation process undertaken pursuant the ESA—is too attenuated to support either

that Plaintiffs have demonstrated an appropriately particularized injury-in-fact or causation under

Article III’s standing requirements.

“Establishing causation in the context of a procedural injury requires a showing of two

causal links: one connecting the omitted [procedural step] to some substantive government

decision that may have been wrongly decided because of the lack of [that procedural

requirement] and one connecting that substantive decision to the plaintiff's particularized injury.”

where Plaintiffs challenge procedural defects in the 2020 BiOp, and seek declaratory and

injunctive relief, but do not raise those challenges to the operative 2021 BiOp. Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (courts cannot “‘declare principles or

rules of law which cannot affect the matter in issue in the case before it’” (quoting Mills v. Green

159 U.S. 651, 653 (1895)); Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d

1096, 1114 (10th Cir. 2010) (concluding that environmental challenge was moot where

complaint did not challenge superseding biological opinion). Defendants likewise challenges the

Alliance’s remaining ESA claim as moot where the Alliance likewise seeks declaratory relief in

conjunction with its challenge that BOEM and the Corps improperly proceeded with approval of

the COP and issuance of the Section 404 Permit without a valid biological opinion given the

agency issued a superseding biological opinion shortly thereafter, which Plaintiffs do not

challenge. The court agrees with Defendants as to the Alliance’s remaining ESA claim as well.

Accordingly, if the mootness inquiry should occur first, the court lacks jurisdiction to decide

Plaintiffs’ pending ESA claims where they are moot.

28

See Ctr. for Bio. Div. v. EPA, 861 F.3d 174, 184 (D.C. Cir. 2017) (quotations omitted). An

agency’s procedural omission is necessary but not sufficient to establish standing. Cf. Ctr. for

Bio. Div., 861 F.3d at 183-86 (holding association had established standing where it

demonstrated that the EPA’s failure to conduct an “effects determination” or ESA Section 7

consultation created a demonstrable risk to the endangered species in which the association’s

member established a demonstrable interest). Instead, a plaintiff must also show the procedural

step was connected to the substantive result.

Here, Plaintiffs have not shown their alleged procedural deficiencies were connected to

(i) their alleged injuries or (ii) any substantive result, where they challenge only decisions

undertaken during the 2020 biological consultation process and not the 2021 BiOp from which

all agency actions flowed.20

Accordingly, where Plaintiffs lack standing to assert the remaining ESA claims,

Plaintiffs’ Motions are denied and Defendants’ and Vineyard Wind’s Motions are granted.

20 The Alliance’s claims suffer from additional defects that would prevent consideration on the

merits. First, the Alliance’s claim requires the court to accept the unsupported fact that the 2020

BiOp was “inadequate,” and thus, could not be relied upon for any purpose, resulting in BOEM

and the Corps adopting actions without having conducted consultation as required under ESA

Section 7. See 1:22-cv-11172, Pl.’s Opp’n 24-25, Doc. No. 77. But the Record demonstrates

instead that (1) the 2020 BiOp was not deemed inadequate, invalid, or otherwise unreliable for

any purpose, (2) reinitation of consultation was limited to discrete issues, (3) BOEM approved

the COP on July 15, 2021, under numerous express conditions, including any terms and

conditions and reasonable and prudent measures stemming from the reinitiated consultation, see

COP Approval Letter, BOEM_077150 at -7152; see also 1:22-cv-11172, Memorandum and

Order 15-19, Doc. No. 104, and (4) the Corps also imposed conditions on its approval, including

adherence to the then-in-effect biological opinion and any subsequently issued biological

opinion. See 2021 BiOp, BOEM_0077276 at -7282; Joint ROD, BOEM_ 0076799 at -6844.

Accordingly, the Alliance has not pointed to some procedural requirement that was left

unsatisfied where BOEM approved the COP and the Corps issued a Section 404 Permit pending

the results of a reinitiated biological consultation.

29

C. Zone of Interest

1. Relevant Law

For Plaintiffs to establish standing under the APA, they must demonstrate they have been

“adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5

U.S.C. § 702; see also CSL Plasma Inc. v. U.S. Customs and Border Prot., 33 F.4th 584, 588

(D.C. Cir. 2022). The “zone of interests” test is “a limitation on the cause of action for judicial

review conferred by the [APA.]” Lexmark Int’l., Inc. v. Static Control Components, Inc., 572

U.S. 118, 129 (2014). As such, a court “ask[s] whether [plaintiff] has a cause of action under the

statute.” Id. at 128. “‘The ‘zone of interest’ test is a guide for deciding whether, in view of

Congress’ evident intent to make agency action presumptively reviewable, a particular plaintiff

should be heard to complain of a particular agency decision.’” Nulankeyutmonen Nkihtaqmikon

v. Impson, 503 F.3d 18, 29 (1st Cir. 2007) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,

399 (1987)). “[T]he test denies a right of review if the plaintiff’s interests are so marginally

related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399.

2. National Environmental Policy Act (Seafreeze, 23rd, 24th, 25th, 26th, 27th, 28th,

29th, 30th, 31st, 32nd, 33rd Claims for Relief, Responsible, Count 4)

Defendants and Vineyard Wind assert that the NEPA claims cannot survive where

Plaintiffs’ only asserted interests are economic. See 1:22-cv-11091, Fed. Defs.’ Reply 1-3, Doc.

No. 93; 1:22-cv-11172, Fed. Defs.’ Reply 2-3, Doc. No. 92; 1:22-cv-11091, Intervenor’s Reply,

Doc. No. 94; 1:22-cv-11172, Intervenor’s Reply 2-4, Doc. No. 92. NEPA was enacted “to

promote efforts which will prevent or eliminate damage to the environment and biosphere and

stimulate the health and welfare of man.” 42 U.S.C. § 4321; see also Nev. Land Action Ass’n v.

U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993). Numerous courts have thus concluded that a

30

plaintiff who asserts purely economic injuries does not come within NEPA’s zone of interests.

Nev. Land Action Ass’n, 8 F.3d at 716; see also Gunpowder Riverkeeper v. FERC, 807 F.3d

267, 274 (D.C. Cir. 2015); Am. Waterways Operators v. U.S. Coast Guard, 613 F. Supp. 3d 475,

486-87 (D. Mass. 2020) (collecting cases).

Such is the case here for the Commercial Fishing Entities and Seafreeze Shoreside, who

each only asserts economic injuries. Similarly, where each of the Plaintiff Associations predicate

injuries on the economic impact of the Project to their members, the Plaintiff Associations

likewise lack statutory standing for their NEPA claims.

Plaintiffs argue that they have stated environmental injuries that will have economic

impact, including that the Project will make Old Squaw Fisheries unable to fish in the Lease

Area, and that this is sufficient to come within NEPA’s zone of interests. 1:22-cv-11091, Pls.’

Opp’n 3-4, Doc. No. 90. They contend that Defendants rely on case law involving purely

economic injuries, see 1:22-cv-11091, Pls.’ Opp’n 3-4, Doc. No. 90 (discussing Am. Waterways

Operators, 613 F. Supp. 3d at 486-87 and Gunpowder Riverkeeper, 807 F.3d at 274), and that

such cases are inapplicable here, where Plaintiffs have asserted environmental harms that will

cause economic injury, id. (citing Monsanto, 561 U.S. at 155). However, the plaintiff farmers in

Monsanto based their standing on a claim that an environmental harm (a potential genetic

mutation from the defendant’s products) could harm their alfalfa crop and ultimately impact to

their livelihoods. The Court left undisturbed the district court’s unchallenged conclusion that

plaintiffs fell within NEPA’s zone of interests because the risk the genetically modified gene at

issue would “infect conventional and organic alfalfa is a significant environmental effect within

the meaning of NEPA.” Monsanto, 561 U.S. at 155.

31

Here, by contrast, Plaintiffs have not put forth competent evidence as to an environmental

injury, or even an environmental harm that would impact their fishing. Instead, where the gist of

their claim is that the physical impediment the Project poses will limit their trawling, Plaintiffs’

argument fails.

Accordingly, the court denies the Seafreeze and Responsible Plaintiffs’ Motions and

grants Defendants and Intervenor’s Motions as to Plaintiffs’ NEPA claims.

3. Marine Mammal Protection Act (Seafreeze, 22nd Claim for Relief; Responsible

Count 5)

Vineyard Wind challenges Plaintiffs’ ability to bring claims challenging the Incidental

Harassment Authorization permit issued by NMFS under the MMPA where Plaintiffs have not

asserted any environmental injuries. The MMPA was adopted by Congress to promote marine

mammal conservation. See 16 U.S.C. § 1361; City of Sausalito v. O’Neill, 386 F.3d 1186, 1202-

03 (9th Cir. 2004).

Here, Plaintiffs assert violations of the APA and MMPA pertaining to the issuance of the

IHA to Vineyard Wind for taking by harassment of right whales. But Plaintiffs have not asserted

any cognizable interest in right whales, or any marine mammals for that matter. While the test

for prudential standing is not “especially demanding,” Lexmark, 572 U.S. at 130 (quotations

omitted), Plaintiffs have not demonstrated any interests that fall within the most generous

reading of the zone of interests for the MMPA. Accordingly, Plaintiffs’ claims fall outside of the

zone of interests of the MMPA and cannot proceed. Thus, as to Plaintiffs’ MMPA claims, the

court denies the Seafreeze and Responsible Plaintiffs’ Motions for Summary Judgment and

grants Defendants and Intervenor’s Motions.

32

IV. Plaintiffs’ Clean Water Act Claims (Seafreeze, 17th Claim for Relief;

Responsible, Count 2)

Plaintiffs assert that the Corps’ issuance of Section 404 Permit under the CWA was

arbitrary and capricious where it violated CWA regulations.21 Both complaints allege that the

Corps’ failed to analyze alternatives to the Project. 1:22-cv-11172, Compl. Counts 2.2, 2.3, Doc.

No. 1; 1:22-cv-11091, Compl. 17th Claim for Relief, Doc. No. 1. The Alliance additionally

claims that the Corps failed to consider the cumulative impact of the Project and future similar

Projects. 1:22-cv-11172, Compl. Counts 2.4, Doc. No. 1; 1:22-cv-11172, Pl.’s Opening Mem.

27-33, Doc. No. 53.22

A. Practicable Alternatives – (Responsible, Counts 2.2, 2.3, Seafreeze, 17th Claim

for Relief23)

The Alliance claims that in issuing the Section 404 Permit, Defendants violated their own

regulations concerning practicable alternatives by failing to analyze less damaging alternatives to

the Vineyard Wind Project. 1:22-cv-11172, Pl.’s Opening Mem. 28-29, Doc. No. 53.

Section § 230.10(a) prohibits (except in circumstances not at issue here) the discharge of

dredged or fill materials “if there is a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosystem, so long as the alternative does not

21 Section 404 Permits allow for the discharge of dredged or fill materials into navigable waters

at specified disposal sites. 33 U.S.C. § 1344.

22 The Parties debate whether Plaintiffs waived their argument that the Section 404 Permit was

flawed where the notice and Permit application reflected a corridor length of 23.3 miles, not the

actual 39.4 mile length of the corridor. 1:22-cv-11172, Fed. Defs.’ Opening Mem. 33-34, Doc.

No. 60; 1:22-cv-11172, Pl.’s Opening Mem. 24-25, Doc. No. 53. However, where that alleged

error was raised by the Alliance only in its summary judgment briefing, and not in its Complaint,

the claim is not properly before the court.

23 The Seafreeze Plaintiffs do not independently brief this issue, instead incorporating the

Alliance’s briefing by reference.

33

have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). Defendants

assert that the Corps considered various other alternatives, “including: (a) the no-action

alternative; (b) a largely land-based alternative; (c) alternatives that would bring the cable on

shore in a different location; (d) two off-site alternatives in other zones of the ocean; and (e)

seven different on-site alternatives.” 1:22-cv-11172, Fed. Defs.’ Opening Mem. 39, Doc. No. 60

(citing USACE AR 011451-52, 011471-73). The Alliance acknowledges that the Corps did

consider other alternatives and it does not argue that any of these alternatives should have been

selected. 1:22-cv-11172, Pl.’s Opp’n 23, Doc. No. 77.

Instead, the Alliance argues that the Corps’ analysis violated its regulations. Id. at 24. The

Alliance’s arguments do not withstand scrutiny. First, the Alliance contends that there is a three-

step analysis that the Corps must conduct: it must assess off-site alternatives; then, if none are

available, it must try to modify the project to minimize impacts; finally, if the project cannot be

modified to avoid impacts, it must determine mitigation measures. 1:22-cv-11172, Pl.’s Opening

Mem. 29, Doc. No. 53 (citing 40 C.F.R. §§ 230.10(a)(2)). But the cited regulation says no such

thing.

Then the Alliance contends that 40 C.F.R. § 230.10(a)(3) requires “the Corps to presume

that practicable alternatives exist[.]” 1:22-cv-11172, Pl.’s Opening Mem. 29, Doc. No. 53. The

Alliance reasons that the Project “is not water dependent” because it does not require “access or

proximity to . . . the special aquatic site in question to fulfill its basic purpose,” and argues that

“when a project does not require any access or proximity to an aquatic site,” the Corps must

“rebut the presumption that there are less practicable alternatives with less adverse

environmental impact.” Id. (citing 40 C.F.R. §§ 230.10(a)(3)). But as Defendants point out, the

Alliance’s argument relies on a misreading of the regulations, including failing to recognize that

34

§ 230.10(a)(3)’s presumption applies only to “special aquatic sites,”24 and that where the

Vineyard Wind Project will not be placed in a “special aquatic site,” the presumption is

inapplicable, and the Alliance’s claim must fail. 1:22-cv-11172, Fed. Defs.’ Opening Mem. 37-

38, Doc. No. 60.

Consequently, Plaintiffs have failed to demonstrate how the regulation purportedly

requiring consideration of alternatives and a presumption that practicable alternatives exist was

violated here. Nor have they made other arguments, independent of the cited regulation, that

would have obligated Defendants to consider other alternatives beyond what was done.

As a result, Plaintiffs’ claims that Defendants failed to consider practicable alternatives

fails.

B. Cumulative Impacts (Responsible, Count 2.4)

The Alliance claims that the Corps failed to consider the cumulative impacts of the

Vineyard Wind Project and other future projects under 40 C.F.R. § 230.11(g),25 where discussion

of cumulative impacts from this Project and similar future projects is absent from the Joint ROD.

1:22-cv-11172, Pl.’s Opening Mem. 31-32, Doc. No. 53. The Alliance argues further that the

Corps cannot rely on the EIS for its cumulative effects analysis, on the ground that the Final EIS

is also deficient and fails to provide this discussion. Id. at 32.

24 As summarized by Defendants, “[s]pecial aquatic sites are sanctuaries, refuges, wetlands, mud

flats, vegetated shallows, coral reefs and riffle pools.” 1:22-cv-11172, Fed. Defs.’ Opening Mem.

38, Doc. No. 60 (citing 40 C.F.R. §§ 230.40 to 230.45; 40 C.F.R. § 230.3(m)).

25 Under 40 C.F.R. § 230.11(g)(2), “cumulative effects attributable to the discharge of dredged or

fill material in the waters of the United States should be predicted to the extent reasonable and

practical. The permitting authority shall collect information and solicit information from other

sources about the cumulative impacts on the aquatic ecosystem.”

35

Defendants respond first that, under 40 C.F.R. § 230.11(g), the Corps’ required

cumulative impact analysis is limited to the 23.3 miles of cable corridor26 covered by the CWA

permit. Where the regulations at issue apply only to the length of corridor permitted under the

CWA regulations (i.e. the 23.3 mile corridor), Defendants are correct.

Defendants argue next, that the Alliance has not explained how future projects would

cause impacts along the 23.3 mile corridor that Defendants failed to consider, and that the Corps

complied with § 230.11(g) in considering cumulative impacts to the 23.3 mile corridor.

Defendants detail that the Corps both relied on cumulative impacts analysis performed as part of

the NEPA review and independently considered cumulative impacts that other wind projects in

the area would cause. 1:22-cv-11172, Fed. Defs.’ Opening Mem. 42-44, Doc. No. 60 (citing

USACE AR 011471 (“reasonably foreseeable activities within the larger overall wind lease area

were considered to account for potential cumulative effects.”)); Fed. Defs.’ Reply 11, Doc. No.

92. Where the Alliance has not pointed to (i) authority suggesting that the Corps cannot rely on

analysis performed during NEPA review or (ii) specific cumulative impacts not considered as

part of the NEPA or CWA review, Defendants’ arguments are well-taken.

At its core, the Alliance is contending that the Corps should have done more to satisfy its

own regulations. The Alliance must meet a high bar to challenge an agency’s interpretation of its

own regulations. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658

26 There are also two disputes concerning this figure: first, Plaintiffs appear to challenge impacts

beyond the 23.3 miles considered under the CWA. Where those challenges are not based on any

agency action or lack of action (i.e. Plaintiffs are not challenging the Rivers and Harbors Permit,

nor are they arguing the CWA considered an overly narrow area) they fail. Second, Plaintiffs

raise, for the first time, that in two public notices, the Corps improperly omitted the total corridor

length. This argument is entirely without merit as the Corps detailed the area to be considered

under the CWA, and other documents connected to the Project review detailed total figures.

36

(2007) (vacatur is proper only where the agency “has relied on factors which Congress had not

intended it to consider, entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the product of agency

expertise.”). The Alliance has failed to make this showing.

Accordingly, Plaintiffs’ Motions for Summary Judgment as to the CWA claims are

denied and Defendants’ and Vineyard Wind’s Motions are granted where certain claims were

waived, and as to those remaining claims, Plaintiffs have not shown show any actions on the part

of Defendants were arbitrary, capricious, or otherwise unlawful.

V. Plaintiffs’ Outer Continental Shelf Lands Act Claims27

A. Smart from the Start (Seafreeze, 1st, 2nd, and 3rd Claims for Relief)

1. Background

On November 23, 2010, the Department of Interior issued a press release which

announced the “Smart from the Start” Initiative, designed to “speed offshore wind energy

development.” 1:22-cv-11091, Joint SOF ¶ 18, Doc. No. 106 (citing U.S. Dep’t of Interior Press

Release). In the press release, BOEM announced that it was “proposing a revision to its

regulations that will simplify the leasing process of offshore wind in situations where there is

only one qualified and interested developer.” Id. at 19. On May 16, 2011, BOEM adopted a final

rule pertaining to non-competitive leases on the Outer Continental Shelf that may utilize pre-

27 In their summary judgment briefing, the Seafreeze Plaintiffs assert for the first time that

BOEM violated OCSLA in approving the Vineyard Wind Site Assessment Plan. Where this

claim is absent from the Complaints, it is not properly before the court, and Plaintiffs’ Motions

for Summary Judgment fail as to that previously unasserted claim.

37

existing facilities. 76 Fed. Reg. 28,178 (May 16, 2011). On February 6, 2012, in addition to

publishing a Call for Information and Nominations for wind energy projects on the Outer

Continental Shelf, BOEM published a notice concerning ongoing efforts to develop wind energy

consistent with the “Smart from the Start” Initiative. 77 Fed. Reg. 5830 (Feb. 6, 2012).

2. Plaintiffs’ Challenge

The Seafreeze Plaintiffs allege the “Smart from the Start” Initiative was a change in

regulatory policy which violates the APA and OCSLA for various reasons, including that (1) the

Initiative was not promulgated through notice-and-comment rulemaking, and (2) the subsequent

application of the Initiative was impermissible, because of the lack of notice-and-comment at

various stages of the Vineyard Wind review process.28

Defendants respond that the “Smart from the Start” Initiative–which Plaintiffs define as a

“policy” adopted in 2010 and 2011 press releases–is not a reviewable agency action. They argue

further that, in any event, even if the 2011 press release and initiative could be challenged as an

agency action, such challenge would be time barred. 1:22-cv-11091, Fed. Defs.’ Opening Mem.

8-9, Doc. No. 73; 1:22-cv-11091, Fed. Defs.’ Reply 21, Doc. No. 93. Vineyard Wind

additionally asserts that (i) Plaintiffs’ Complaint ¶ 55, 1:22-cv-11091, Doc. No. 1, challenges

only 76 Fed. Reg. 28,178, a regulation pertaining to non-competitive leasing (which the process

for OCS-A 0501 was not), and (ii) nothing in the Record demonstrates that the “Smart from the

Start” Initiative was applied to the relevant Environmental Assessment or the EIS prepared in

28 The Seafreeze Plaintiffs also brought a claim pertaining to the “Smart from the Start” Initiative

under the APA and NEPA. See 1:22-cv-11091, Compl. 24th Claim for Relief, ¶¶ 286-293, Doc.

No. 1. Where Plaintiffs lack standing to bring claims under NEPA, the court does not reach this

claim.

38

connection with the Vineyard Wind Project. 1:22-cv-11091, Intervenor’s Reply 7-8, Doc. No.

94.29 The court need not reach whether the “Smart from the Start” Initiative was a final agency

action where Plaintiffs’ challenges are time barred.

Under 28 U.S.C. § 2401(a), “every civil action commenced against the United States

shall be barred unless the complaint is filed within six years after the right of action first

accrues.” Here, the “Smart from the Start” Initiative was announced in 2010; a final rule

pertaining to non-competitive leaves was issued in 2011; and BOEM published a notice

concerning ongoing efforts to develop wind energy consistent with the “Smart from the Start”

Initiative in 2012. The two actions here were filed more than nine years later, in December 2021

and January 2022.

Plaintiffs contend the statute of limitations does not apply to ultra vires actions. 1:22-cv-

11091, Pls.’ Opening Mem. 19-20, Doc. No. 67 (citing La. Pub. Serv. Comm’n v. FCC, 476 U.S.

355, 374 (1986)). To the extent Plaintiffs are arguing that there is no statute of limitations

applicable to such actions, they are incorrect. Louisiana Public Service Commission does not

instruct otherwise.

Next, Plaintiffs contend their challenge is not time barred where it “‘arises in response to

application of the [agency action] to the challenger[.]’” 1:22-cv-11091, Pls.’ Opp’n 33-34, Doc.

No. 90 (quoting Rodriguez v. United States, 852 F.3d 67, 82 (1st Cir. 2017)). The statute of

limitations to challenge illegal agency actions may be tolled until it is applied to a challenger.

29 Vineyard Wind also challenges the Seafreeze Plaintiffs’ standing to bring claims concerning

the “Smart from the Start” Initiative. 1:22-cv-11091, Intervenor’s Reply 7-8, Doc. No. 94. Where

the Seafreeze Plaintiffs have asserted economic injuries caused by the application of the “Smart

from the Start” Initiative to BOEM’s subsequent leasing and approval decisions under OCSLA,

the court considers the statute of limitations defense first.

39

See Aguayo v. Jewell, 827 F.3d 1213, 1226 (9th Cir. 2016). However, Plaintiffs have not

demonstrated that the “Smart from the Start” Initiative was applied to any aspect of the Vineyard

Wind Project, let alone that it was applied to Plaintiffs. Although Plaintiffs contend BOEM’s

issuance of the Vineyard Wind Lease, publication of the Final EIS, issuance of the ROD, and

approval of the COP were each “later” applications of the “Smart from the Start” Initiative, some

of which they contend make their challenge timely, Plaintiffs offer no evidence to demonstrate

the “Smart from the Start” Initiative was applied in any of those phases of the Project review

process. Where they have not offered evidence that the “Smart from the Start” Initiative was

applied to the Vineyard Wind Project, their tolling argument fails.

Accordingly, the Seafreeze Plaintiffs’ challenge to the “Smart from the Start” Initiative is

time-barred.30 As to the Seafreeze Plaintiffs’ First, Second,31 and Third Claims for Relief, the

Seafreeze Plaintiffs’ Motion for Summary Judgment is denied and Defendants’ and Vineyard

Wind’s Motions for Summary Judgment are granted.

B. Violations of 43 U.S.C. § 1337(p)(4)

Both the Seafreeze Plaintiffs and the Alliance assert that BOEM violated OCSLA in

numerous phases of the Vineyard Wind Project by failing to ensure it met the majority of the

twelve goals enumerated under § 1337(p)(4). 1:22-cv-11091, Pls.’ Opening Mem. 25-26, Doc.

30 Although Plaintiffs assert that their claims challenging the application of the “Smart from the

Start” Initiative implicates the major questions doctrine, where their APA/OCSLA claims

pertaining to the “Smart from the Start” Initiative are time-barred, and their NEPA claims have

been dismissed for want of standing, the court is without jurisdiction to consider Plaintiffs’

further arguments as to these claims.

31 The Seafreeze Plaintiffs’ Second Claim for Relief as it pertains to their claim that BOEM did

not consider the requisite factors under 43 U.S.C. § 1337(p)(4) in issuing the Lease is addressed

below.

40

No. 67; 1:22-cv-11172, Pl.’s Opening Mem. 13, Doc. No. 53 (incorporating the Seafreeze

Plaintiffs’ arguments pertaining to OCSLA by reference). Defendants contend that Plaintiffs’

claims are deficient in numerous respects and that, in any event, Defendants’ actions are entitled

to deference. The court considers each of the challenged actions in turn below.

1. Vineyard Wind Lease (Seafreeze 2nd Claim for Relief)

Plaintiffs contend that BOEM’s issuance of the Lease violated OCSLA’s substantive

requirements under § 1337 and EPA’s procedural requirements under 40 C.F.R. § 1501.3(a)

where BOEM prepared an Environmental Assessment but failed to prepare an Environmental

Impact Statement for the Lease issuance; and BOEM did not otherwise consider the factors

enumerated in § 1337 when issuing the Vineyard Wind Lease. 1:22-cv-11091, Pls.’ Opening

Mem. 19-26, Doc. No. 67.

Defendants assert that challenges to the issuance of the Vineyard Wind Lease and the

Environmental Assessment BOEM prepared in connection with the Lease issuance are time

barred. The court agrees. Under 28 U.S.C. § 2401(a), except in the case of contract disputes not

at issue here, “every civil action commenced against the United States shall be barred unless the

complaint is filed within six years after the right of action first accrues.” The Lease was effective

April 1, 2015. The first of these actions was not commenced until December 15, 2021. As

discussed supra, Plaintiffs’ sole argument that the action is not time barred–that actions which

are “ultra vires” can be challenged at any time – has no legal support. Accordingly, the Seafreeze

Plaintiffs’ Motion for Summary Judgment is denied and Defendants’ and Vineyard Wind’s

Motions for Summary Judgment are granted as to the Seafreeze Plaintiffs’ challenges to the

issuance of the Vineyard Wind Lease as violating the OCSLA.

41

2. Approval of the COP (Seafreeze, 5th Claim for Relief; Responsible, Count 1.1,

1.2, and 1.7)

Plaintiffs argue that, as a matter of statutory construction, 43 U.S.C. § 1337(p)(4)

imposes certain non-negotiable requirements that Defendants failed to provide for in

consideration of the Vineyard Wind COP. 1:22-cv-11091, Pls.’ Opening Mem. 25-27, Doc. No.

67; 1:22-cv-11172, Pl.’s Opening Mem. 13-15, Doc. No. 53 (adopting the Seafreeze Plaintiffs’

arguments); Pl.’s Opp’n 17-19, Doc. No. 77 . Defendants respond that § 1337 commits discretion

to the Secretary of the Interior to ensure these criteria are appropriately balanced, and that, as a

result, the Secretary’s determinations are entitled to deference, and, in any event, that Defendants

complied with OCSLA in approving the COP. 1:22-cv-11091, Fed. Defs.’ Opening Mem. 35-36,

Doc. No. 73.

Under OCSLA, the Secretary of the Interior may, in consultation with other agencies,

grant leases, easements, or other rights of way on the Outer Continental Shelf for the purpose of

renewable energy production. 43 U.S.C. § 1337(p)(1)(c). Section 1337(p)(4), entitled

“Requirements,” provides:

The Secretary [of the Interior] shall ensure that any activity under this subsection

is carried out in a manner that provides for–

(A) safety;

(B) protection of the environment;

(C) prevention of waste;

(D) conservation of the natural resources of the outer Continental Shelf;

(E) coordination with relevant Federal agencies;

(F) protection of national security interests of the United States;

(G) protection of correlative rights in the outer Continental Shelf;

(H) a fair return to the United States for any lease, easement, or right-of-way under

this subsection;

42

(I) prevention of interference with reasonable uses (as determined by the

Secretary) of the exclusive economic zone, the high seas, and the territorial

seas;

(J) consideration of—

i. the location of, and any schedule relating to, a lease, easement, or right-of-

way for an area of the outer Continental Shelf; and

ii. any other use of the sea or seabed, including use for a fishery, a sealane, a

potential site of a deepwater port, or navigation;

(K) public notice and comment on any proposal submitted for a lease, easement, or

right-of-way under this subsection; and

(L) oversight, inspection, research, monitoring, and enforcement relating to a lease,

easement, or right-of-way under this subsection.

43 U.S.C. § 1337(p)(4).

Plaintiffs argue that where this Section is titled “Requirements” and states that the

Secretary “shall ensure” that activity is carried out in a manner that provides for the twelve

enumerated grounds, Defendants are required to ensure that each of those criteria are met.

Plaintiffs argue that in approving the COP Defendants did not provide for (A) safety, and (I)

interference with reasonable uses of the OCS, specifically, fisheries’ use.32 See 1:22-cv-11091,

Pls.’ Opp’n 20, Doc. No. 90. Plaintiffs rely on Almendarez-Torres v. United States, 523 U.S. 224

(1998) and National Association of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007),

however, neither Almendarez-Torres nor National Association of Home Builders directs the

result Plaintiffs seek.

32 Plaintiffs also asserted challenges as to (B) protection of the environment; (D) conservation of

natural resources; and (F) protection of national security. 1:22-cv-11091, Compl. 5th Claim for

Relief, Doc. No. 1; 1:22-cv-11172, Compl. Count 1, Doc. No. 1. However, Plaintiffs have not

established standing as to these challenges. Specifically, as discussed supra, Plaintiffs offer no

evidence to support their standing to bring claims on behalf of marine species, natural resources,

or national security issues.

43

First, it is true that “the title of a statute and the heading of a section are tools available

for the resolution of a doubt about the meaning of a statute.” Almendarez-Torres, 523 U.S. at 234

(internal citations omitted). But consideration of the section heading does not resolve the dispute

here which centers on how the agency determines whether each of the enumerated

“Requirements” is satisfied, not whether they are requirements at all.

Second, although Plaintiffs are correct that “shall” should be construed as mandatory,

Plaintiffs are incorrect that the word mandates their preferred outcome here. While National

Association of Home Builders certainly dictates that “shall” means the statutory directive is not

discretionary, it also recognizes that, in considering whether the enumerated factors have been

satisfied in the statute at issue, the agency must necessarily exercise some discretion. 511 U.S. at

671 (“While the EPA may exercise some judgment in determining whether a State has

demonstrated that it has the authority to carry out § 402(b)’s enumerated statutory criteria, the

statute clearly does not grant it the discretion to add another entirely separate prerequisite to that

list.”). The Secretary still retains some discretion in considering whether the enumerated

statutory criteria have been satisfied, even where the statute does not state so expressly.

Such is the case here. Plaintiffs advocate that each enumerated criterion must be satisfied

to its absolute maximum, without the discretion functionally necessary for the Secretary to

determine what each criterion requires, both generally and as to a given proposal, and how to

ensure each criterion is met, and not to the detriment of the other criteria.

Commonwealth of Massachusetts v. Andrus, 594 F.2d 872 (1st Cir. 1979), cuts directly

against Plaintiffs’ argument (despite their contention otherwise). In Andrus, the First Circuit

considered the following language:

44

[T]his subchapter shall be construed in such a manner that the character of the

waters above the outer Continental Shelf as high seas and the right to

navigation and fishing therein shall not be affected.

43 U.S.C. § 1332(2). The plaintiffs in Andrus argued that this language “imposes a duty on the

Secretary to see that mining and drilling are conducted absolutely without harm to fisheries.” 594

F.2d at 888. However, prior interpretations of the provision concluded that it was “directed at the

legal right to fish rather than at prohibiting physical impediments.” Id. at 889. Against this

backdrop, the First Circuit concluded that Section 1332(2) placed on the Secretary a duty to see

that offshore drilling activities were conducted “without unreasonable risk to the fisheries.” Id.

Moreover, the First Circuit recognized in Andrus that Congress knew that oil and gas

development would have an impact on fisheries, but that “the concept of balance rules out a

policy based on sacrificing one interest to the other.” Id. at 889. Balance is similarly required

here, where Congress has recognized the importance of leasing on the Outer Continental Shelf in

support of energy projects, and, specifically enumerated twelve factors to be provided for,

including the “prevention of interference with reasonable uses (as determined by the Secretary)

of the exclusive economic zone, the high seas, and the territorial seas[.]” 43 U.S.C.

§ 1337(p)(4)(I).

Plaintiffs contend that Andrus rejected the wholesale destruction of a fishery, which they

claim is the case here, 1:22-cv-11091, Pls.’ Opp’n 22, Doc. No. 90 (citing Joint ROD,

BOEM_0076837 reflecting that the area will “likely…be abandoned by commercial fisheries”),

but, as the court held in its Memorandum and Order, 1:22-cv-11091, Doc. No. 137, on Plaintiffs’

motions to strike, the language on which Plaintiffs rely for the proposition that the Area will be

abandoned is a mere clerical error in the Administrative Record that has since been corrected by

45

the Corps. Where Plaintiffs do not offer other evidence of the complete destruction of fisheries in

the OCS, their argument fails.

Beyond their statutory challenge, Plaintiffs contend that the Secretary, in fact, did not

provide for safety or prevention of interference with reasonable uses as required by 43 U.S.C.

§ 1337(p)(4) in approving the COP. However, where Plaintiffs point only to the impact to fishing

operations as reflected in since-corrected misstatements to the Record that the court has since

concluded were clerical errors, Plaintiffs’ challenges to the COP approval as arbitrary and

capricious and in violation of OCSLA are entirely without merit.

Accordingly, as to Plaintiffs’ challenge to the approval of the COP as violating OCSLA,

Plaintiffs’ Motions for Summary Judgment are denied and Defendants’ and Vineyard Wind’s

Motions for Summary Judgment are granted.

3. Temporary Withdrawal and Resumption of COP Review (Seafreeze Plaintiffs’ 4th

Claim for Relief)

Plaintiffs alleges that BOEM lacked authority to restart review of the COP after

suspending it at Vineyard Wind’s request, and that BOEM’s decision to restart review was ultra

vires. 1:22-cv-11091, Pls.’ Opening Mem. 33-34, Doc. No. 67. Plaintiffs further contend that,

once BOEM resumed review of the COP, BOEM did not independently confirm Vineyard

Wind’s technical review of the newly selected turbines, and BOEM failed to provide a notice-

and-comment period for the resumed review process, as required under NEPA and OCSLA. Id.

Defendants respond that the decisions to suspend and resume review were lawful. 1:22-cv-

11091, Fed. Defs.’ Opening Mem. 17-18, Doc. No. 73. Defendants further note that the requisite

notice-and-comment periods were previously satisfied under both NEPA and OCSLA, and

Vineyard Wind’s technical review of the newly proposed turbines reflected that the turbine fit

within the parameters and design envelope previously considered in the Supplemental Draft EIS

46

so no substantive re-review was required by the agencies. 1:22-cv-11091, Fed. Defs.’ Opening

Mem. 17-18, Doc. No. 73 (citing BOEM_0067698-701, 0067703-04; BOEM_0067665).

The court finds Plaintiffs’ arguments unpersuasive where Plaintiffs offer no authority (i)

to suggest that resumption of review was subject to notice and comment, or (ii) that BOEM was

without authority to suspend review and resume it. Nor have Plaintiffs shown that, even if there

were some technical violation, how that violation was anything beyond harmless error where the

changes made by Vineyard Wind were within the parameters already contemplated and reviewed

as part of the NEPA process. See 1:22-cv-11091, Joint SOF ¶ 50, Doc. No. 106. Accordingly,

Plaintiffs’ Motion for Summary Judgment is denied, and Defendants’ and Vineyard Wind’s

Motions are granted, as to the Seafreeze Plaintiffs’ 4th Claim for Relief.

VI. Conclusion

For the foregoing reasons, Plaintiffs have not shown that Defendants acted arbitrarily,

capriciously, or otherwise unlawfully. Accordingly, Defendants and Vineyard Wind’s Motions

for Summary Judgment, 1:22-cv-11091, Doc. Nos. 72, 86; 1:22-cv-11172, Doc. Nos. 59, 73, are

GRANTED and Plaintiffs’ Motions for Summary Judgment, 1:22-cv-11091, Doc. No. 66; 1:22-

cv-11172, Doc. No. 52, are DENIED.

IT IS SO ORDERED

October 12, 2023 /s/ Indira Talwani

United States District Judge

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