Petition for Writ of Certiorari — Nantucket Residents Against Turbines, et al., Petitioners v. Bureau of Ocean Energy Management, et al.
Supreme Court briefSep 23, 2024
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No. 24In the
Supreme Court of the United States
NANTUCKET RESIDENTS AGAINST TURBINES
AND VALLORIE OLIVER,
Petitioners,
v.
UNITED STATES,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
Nancie G. Marzulla
Counsel of Record
Roger J. Marzulla
Marzulla Law, LLC
1150 Connecticut Avenue, NW,
Suite 1050
Washington, D.C. 20036
(202) 822-6760
nancie@marzulla.com
Counsel for Petitioners
September 23, 2024
117122
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
In March 2021, the administration announced its plan
of “bold actions” to catalyze the development of offshore
wind energy by taking “coordinated steps to support rapid
offshore wind development.”1 But the federal government
has lost sight of its statutory obligations to conserve
endangered species that will be directly affected by the
construction of thousands of wind turbines in the Atlantic
Ocean.
The Endangered Species Act imposes an affirmative
duty on all federal agencies to ensure that their actions
are not likely to jeopardize the continued existence of a
species, using the best scientific data available. 2 Excluding
the effects of other planned governmental actions violates
the best available science requirement.
The question presented is whether federal agencies
can, consistent with the plain language of the Endangered
Species Act, exclude from their Section 7 analysis known
and available science regarding impacts on an endangered
species resulting from federal actions.
1. The White House, Fact Sheet: Biden Administration
Jumpstarts Offshore Wind Energy Projects to Create Jobs (Mar.
29, 2021), https://www.whitehouse.gov/briefing-room/statementsreleases/2021/03/29/fact-sheet-biden-administration-jumpstartsoffshore-wind-energy-projects-to-create-jobs/.
2. See 16 U.S.C. § 1536; see also 50 C.F.R. § 402.14(g)(8).
ii
PARTIES TO THE PROCEEDINGS
Petitioners, Nantucket Residents Against Turbines
and Vallorie Oliver, were plaintiffs-appellants in the First
Circuit. Respondents, the United States, acting through
the U.S. Bureau of Ocean Energy Management, National
Oceanic and Atmospheric Administration, National
Marine Fisheries Service, Debra Haaland, Secretary of
the Interior, Gina M. Raimondo, Secretary of Commerce,
and Vineyard Wind 1, LLC, were defendant-appellees in
the court below.
iii
CORPORATE DISCLOSURE
Nantucket Residents Against Turbines is a 501(c)(3)
non-profit, non-governmental corporation. It has no parent
corporation and no publicly held company owns 10% or
more of its stock.
iv
STATEMENT OF RELATED CASES
Nantucket Residents Against Turbines, et al. v. U.S.
Bureau of Ocean Energy Management, No. 23-1501, U.S.
Court of Appeals for the First Circuit. Judgment Entered
April 24, 2024. Nantucket Residents Against Turbines,
et al. v. U.S. Bureau of Ocean Energy Management, No.
1:21-cv-11390-IT, U.S. District Court for the District of
Massachusetts. Judgment Entered May 17, 2023.
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii
CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF RELATED CASES . . . . . . . . . . . . . iv
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATUTORY AND REGULATORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 6
I.
Statutory and Regulatory Framework . . . . . . . . 6
1.
Endangered Species Act . . . . . . . . . . . . . . . . 6
2.
Energy Policy Act of 2005 . . . . . . . . . . . . . . . 9
vi
Table of Contents
Page
3.
S ect ion 7 of t he Enda ngered
Species Act Requ i res A gencies
to Consider A ll Known and Best
Available Science to Avoid Adverse
Impacts on Listed Species . . . . . . . . . . . . . 10
REASONS FOR GRANTING THE PETITION . . . . 13
1.
The First Circuit’s Decision Conflicts
w ith the Plain Lang uage of the
Endangered Species Act . . . . . . . . . . . . . . . 15
2.
T h e F i r s t C i r c u i t ’s D e c i s i o n
Directly Conflicts with Decisions of
the Ninth and the D.C. Circuits . . . . . . . . . 21
3.
T he F i r st C i r c u it ’s Er r one ou s
Decision Will Have Far-Reaching
Implications on the Ocean
Environment and the Species that
Depend on It . . . . . . . . . . . . . . . . . . . . . . . . . 26
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
vii
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, FILED APRIL 24, 2024 . . . . . . 1a
APPENDIX B — MEMORANDUM AND ORDER
OF THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MASSACHUSETTS,
FILED MAY 17, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 33a
APPENDIX C — RELEVANT STATUTORY
PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103a
viii
TABLE OF CITED AUTHORITIES
Page
CASES
Conner v. Burford,
848 F.2d 1441 (9th Cir. 1988) . . . . . . . . . . . . 2, 8, 22, 24
Ctr. for Biological Diversity v. Regan,
No. CV 21-119 (RDM), 2024 WL 1602457
(D.D.C. Apr. 12, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 15
Defs. of Wildlife v. U.S. Env’t Prot. Agency,
420 F.3d 946 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 26
Loper Bright Enterprises v. Raimondo,
144 S. Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 21
Maine Lobstermen’s Ass’n v. Nat’l Marine
Fisheries Serv.,
70 F.4th 582 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . . 26
N. Slope Borough v. Andrus,
642 F.2d 589 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . 16
Nantucket Residents Against Turbines v.
U.S. Bureau of Ocean Energy Mgmt.,
100 F.4th 1 (1st Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . 5
Nantucket Residents Against Turbines v.
U.S. Bureau of Ocean Energy Mgmt.,
No. 23-1501, 2023 WL 6550487
(1st Cir. Oct. 29, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . 18
ix
Cited Authorities
Page
Nat. Res. Def. Council v. Haaland,
102 F.4th 1045 (9th Cir. 2024) . . . . . . . . . . . . . . . . 8, 23
Oceana, Inc. v. Pritzker,
75 F. Supp. 3d 469 (D.D.C. 2014) . . . . . . . . . . . . . . . . . 7
Tennessee Valley Auth. v. Hill,
437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Thomas v. Peterson,
753 F.2d 754 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 25
Wild Fish Conservancy v. Salazar,
628 F.3d 513 (9th Cir. 2010) . . . . . . . . . . . 23, 24, 25, 26
STATUTES, REGULATIONS AND
OTHER AUTHORITIES
16 U.S.C. § 1531(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
16 U.S.C. §§ 1531–1544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
16 U.S.C. § 1533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16 U.S.C. § 1536(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 21
16 U.S.C. § 1536(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
x
Cited Authorities
Page
50 C.F.R. § 402.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
50 C.F.R. § 402.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
50 C.F.R. § 402.14(g)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
50 C.F.R. § 402.14(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Bureau of Ocean Energy Management, Vineyard
Wind Record of Decision (May 10, 2021),
www.boem.gov/sites/default/files/documents/
renewable-energy/state-activities/ FinalRecord-of-Decision-Vineyard-Wind-1.pdf . . . . . . . . . 1
Bureau of Ocean Energy Management, Draft
BOEM and NOAA Fisheries North Atlantic
Right Whale and Offshore Wind Strategy
(Oct. 2022), https://w w w.regulations.gov/
docket/BOEM-2022-0066/document . . . . . . . . . . 10, 11
Bureau of Ocean Energy Management, BOEM
and NOAA Fisheries North Atlantic Right
Whale and Offshore Wind Strategy (Jan.
2024), https://www.boem.gov/sites/default/
files/documents/environment/BOEM_NMFS_
NARW_OSW_0.pdf . . . . . . . . . 3, 4, 10, 11, 12,13, 16, 27
Dept. of Energy, Advancing Offshore Wind
Energy in the United States (Mar. 29,
2 0 2 3) , ht t p s : // w w w. e n e r g y. g o v/s i t e s /
default/files/2023- 03/advancing-offshorewind-energy-full-report.pdf . . . . . . . . . . . . . . . . . . . . 1
xi
Cited Authorities
Page
National Marine Fisheries Service, Endangered
Species Act Sectio n 7 Co nsultatio n
Biological Opinion (Oct. 18, 2021), https://
www.boem.gov/sites/default/files/documents/
renewable - energ y/2 021-Vineya rd-Wind1- B i O p - F i n a l _ 0 . p d f ( 2 0 2 1 B i o l o g i c a l
Opinion) . . . . . . . . . . . . . . . 2, 3, 8, 12, 13, 14, 16, 17, 22
National Marine Fisheries Service, Species
in the Spotlight: Nor th Atlantic Right
Whale, Priority Actions 2021–2025, https://
media.fisheries.noaa.gov/2021-04/SIS%20
Action%20Plan%202021_NARightWhaleFINAL%20508.pdf (last visited Sept. 16, 2024) . . . 28
National Marine Fisheries Service, U.S. Atlantic
an d G ulf of Mex i co Mar in e Mamm a l
St o ck Assess m e n t s 2 0 2 2 (Ju ne 2 0 2 3),
https://media.fisheries.noaa.gov/2023- 08/
Final-Atlantic-and-Gulf-of-Mexico-SAR.pdf . . . . . . 3
National Oceanic and Atmospheric Administration
Fisheries, North Atlantic Right Whales
on the Move in the Nor theast (Apr. 15,
2 0 21), ht t p s: // w w w. f i sher ie s .noa a .gov/
feature-story/north-atlantic-right-whalesm o v e - n o r t h e a s t # :~ : t e x t =R i g h t % 2 0
whales%20have%20typically%20appeared,
just%20the%20last%2010%20years . . . . . . . . . . . . . . 4
xii
Cited Authorities
Page
National Oceanic and Atmospheric Administration,
North Atlantic Right Whale, https://www.
fisheries.noaa.gov/species/north-atlanticright-whale (last visited Sept. 16, 2024) . . . . . . . . . . . 3
Est er Q u i nt a na -R i z z o et a l., Re sidenc y,
Demographics, and Movement Patterns of North
Atlantic Right Whales Eubalaena Glacialis
in an Offshore Wind Energy Development
Area in Southern New England, USA, 45
Endangered Species Research (2021), https://
repository.library.noaa.gov/view/noaa/31617) . . . . . 18
Daniel J. Rohlf & Colin Reynolds, Restoring the
Emergency Room: How to Fix Section 7(a)(2)
of the Endangered Species Act, 52 Envtl. L. 685
(2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Matt Schooley, Vineyard Wind Shut Down After
Turbine Failure Sends “Sharp Fiberglass
Shards” Onto Nantucket Beaches, CBS News
(July 17, 2024), https://www.cbsnews.com/boston/
news/nantucket-beaches-closed-vineyard-wind/ . . . 2
T h e W h i t e Ho u s e , Fa c t S h e e t : B i d e n
Administration Jumpstarts Offshore Wind
Energy Projects to Create Jobs (Mar. 29,
2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/03/29/factsheet-biden-administration-jumpstar tsoffshore-wind-energy-projects-to-createjobs/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 26, 27
1
PETITION FOR A WRIT OF CERTIORARI
The approximately 50-square-mile island of Nantucket,
located in the southeastern part of Massachusetts, is a
charming, slow-paced community with historic structures
and areas. Over the objections of Nantucket residents, the
federal government approved the siting of the nation’s
first offshore wind turbine project, Vineyard Wind 1,
fifteen miles offshore of Nantucket. 3 The project owners
are Avangrid (part of Iberdrola Group) and Copenhagen
Infrastructure Partners, which are operating through
Vineyard Wind LLC —the company constr ucting
Vineyard Wind 1 and overseeing operations.
The Vineyard Wind 1 Project is the first of the
government’s “coordinated steps” to construct about 30
wind turbine projects along the Atlantic seaboard that,
when built out, will have thousands of turbines covering
millions of acres of federal submerged lands.4 Vineyard
Wind LLC has constructed, or partially constructed, 47 of
the 62 approved wind turbines, with each turbine spaced
one nautical mile apart. Once fully constructed, each
3. See Bureau of Ocean Energy Management, Vineyard Wind
Record of Decision (May 10, 2021), www.boem.gov/sites/default/
files/documents/renewable-energy/state-activities/Final-Recordof-Decision-Vineyard-Wind-1.pdf.
4. The White House, Fact Sheet: Biden Administration
Jumpstarts Offshore Wind Energy Projects to Create Jobs (Mar.
29, 2021), https://www.whitehouse.gov/briefing-room/statementsreleases/2021/03/29/fact-sheet-biden-administration-jumpstartsoffshore-wind-energy-projects-to-create-jobs/; see generally
Dept. of Energy, Advancing Offshore Wind Energy in the United
States (Mar. 29, 2023), https://www.energy.gov/sites/default/
files/2023-03/advancing-offshore-wind-energy-full-report.pdf.
2
turbine stands 853 feet above the water and is almost three
times the size of the Statue of Liberty. The 47 turbines
have already begun to adversely impact the Nantucket
community, the ocean environment, and marine species’
habitat. Although not considered in any environmental
impact analyses, problems with the turbines have also
already begun. In July 2024, a large portion of a 350-foot
fiberglass and PVC blade broke off one of Vineyard Wind’s
turbines into the water, and pieces of the blade washed
ashore and littered the beaches of Nantucket. 5
Despite the agencies’ explicit statutory duty to
consider all “best information available,” 6 regarding
the impacts its actions might have on an endangered
or threatened species and those habitats, the National
Marine Fisheries Service (NMFS) and the Bureau of
Ocean Energy Management (BOEM), did not consider the
cumulative impacts of other planned projects when they
authorized and issued permits to construct the Vineyard
Wind 1 Project.
At the time of the Vineyard Wind 1 Biological Opinion,
BOEM had issued over 25 offshore wind leases (on which
one or more projects will be built), yet in the Biological
Opinion, NMFS openly stated that it did not consider the
cumulative impacts of those projects.7
5. See Matt Schooley, Vineyard Wind Shut Down After
Turbine Failure Sends “Sharp Fiberglass Shards” Onto
Nantucket Beaches, CBS News (July 17, 2024), https://www.
cbsnews.com/boston/news/nantucket-beaches-closed-vineyardwind/.
6. Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988).
7. National Marine Fisheries Service, Endangered Species
Act Section 7 Consultation Biological Opinion (Oct. 18, 2021)
3
Due to overharvesting in the 19th century, the North
Atlantic Right Whale is among the most imperiled species
on the planet, 8 and “progress toward [R]ight [W]hale
recovery ha[s] regressed.” 9 The North Atlantic Right
Whale has been on the brink of extinction for more than a
hundred years and was among the first species to be listed
as endangered.10 The current number of North Atlantic
Right Whales has dwindled to 338.11
The North Atlantic Right Whale will bear the
brunt of the federal government’s shortcutting of the
environmental review process. As reported by NMFS:
at 143, https://w w w.boem.gov/sites/default/files/documents/
renewable-energy/2021-Vineyard-Wind-1-BiOp-Final_0.pdf (2021
Biological Opinion).
8. See Bureau of Ocean Energy Management, BOEM and
NOAA Fisheries North Atlantic Right Whale and Offshore Wind
Strategy (Jan. 2024) at 8, https://www.boem.gov/sites/default/files/
documents/environment/BOEM_NMFS_NARW_OSW_0.pdf
(Strategy on the North Atlantic Right Whale) (“The species faces
a high risk of extinction, and the population size is small enough
that the death of even very few individuals can have a measurable
effect on its population status, trend, and dynamics. Furthermore,
the loss of even one individual a year . . . may reduce the likelihood
of species recovery. . . .”).
9. See 2021 Biological Opinion supra note 7 at 67.
10. See National Oceanic and Atmospheric Administration,
North Atlantic Right Whale, https://www.fisheries.noaa.gov/
species/north-atlantic-right-whale (last visited Sept. 16, 2024)
11. National Marine Fisheries Service, U.S. Atlantic and
Gulf of Mexico Marine Mammal Stock Assessments 2022 (June
2023) at 2, https://media.fisheries.noaa.gov/2023-08/FinalAtlantic-and-Gulf-of-Mexico-SAR.pdf.
4
Right [W]hales have typically appeared in Cape
Cod Bay during spring, but in recent years
have been arriving sooner and staying longer.
Right [W]hale use of areas south and west of
Nantucket Shoals has been documented in just
the last 10 years. In recent years, the [R]ight
[W]hales appear to be staying in these waters
in greater numbers and for longer periods than
in the past.12
Despite the obvious effects that constructing wind
turbines all along the North Atlantic Right Whale’s
migratory route and now year-round habitat will have,13
the agencies evaluated only the impacts caused by the
Project itself and ignored obvious impacts from all the
other projects planned in the Atlantic Ocean.
The decision below affirming the district court’s
wholesale approval of the federal agencies’ incomplete
Section 7 analysis directly conflicts with decisions of the
Ninth Circuit, rejecting the agency’s piecemeal analysis
of environmental impacts on a species, and the D.C.
Circuit, rejecting the First Circuit’s deference to the
agency’s determination of what the ESA requires. Review
by this Court to reverse the agencies’ failure to consider
all known environmental impacts on the Right Whale as
12. National Oceanic and Atmospheric Administration
Fisheries, North Atlantic Right Whales on the Move in the Northeast
(Apr. 15, 2021), https://www.fisheries.noaa.gov/feature-story/
north-atlantic-right-whales-move-northeast#:~:text=Right%20
whales%20have%20typically%20appeared,just%20the%20
last%2010%20years.
13. See Strategy on the North Atlantic Right Whale supra
note 8 at 10.
5
explicitly required by Section 7 of the federal Endangered
Species Act and to resolve the conflict among the circuits
is warranted.
Petitioners, Nantucket Residents Against Turbines
and Vallorie Oliver, respectfully petition this Court for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the First Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the First Circuit is reported as Nantucket Residents
Against Turbines v. U.S. Bureau of Ocean Energy Mgmt.,
100 F.4th 1 (1st Cir. 2024) (Pet. App. 1a), decided on April
24, 2024, and reproduced in the appendix hereto (“Pet.
App.”) at 1a. The opinion of the District Court for the
District of Massachusetts is reported at 675 F. Supp. 3d
28 (D. Mass. 2023), and is reproduced at Pet. App. 33a.
JURISDICTION
The judgment of the First Circuit was entered on April
24, 2024. Pet. App. 1a. On July 17, 2024, Justice Jackson,
extended the time for filing a petition for certiorari to and
including September 23, 2024. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
The relevant provisions of the Endangered Species
Act,14 are reproduced at Pet. App. 103a.
14. 16 U.S.C. §§ 1531–1544.
6
STATEMENT OF THE CASE
I.
Statutory and Regulatory Framework
1.
Endangered Species Act
Congress enacted the Endangered Species Act (ESA)
in 1973 “to provide a means whereby the ecosystems upon
which endangered species and threatened species depend
may be conserved . . . [and] to provide a program for the
conservation of such endangered species and threatened
species.”15 Section 7 of the ESA requires that:
Each Federal agency shall, in consultation with
and with the assistance of the Secretary, insure
that any action authorized, funded or carried
out by such agency . . . is not likely to jeopardize
the continued existence of any endangered or
threatened species or result in the destruction
or adverse modification of habitat of such
species. . . . 16
During the consultation, NMFS must “[f]ormulate
[its biological] opinion as to whether the action, taken
together with cumulative effects, is likely to jeopardize
the continued existence of listed species or result in the
destruction or adverse modification of critical habitat.”17
Upon completion of the Section 7 consultation, the
agency must set forth its analysis in a Biological Opinion,
including the agency’s determination of whether there is
15. 16 U.S.C. § 1531(b).
16. 16 U.S.C. § 1536(a)(2).
17. 50 C.F.R. § 402.14(g)(4).
7
“jeopardy” to the species and what measures the agency
must take to avoid jeopardy,18 using the “best scientific
and commercial data available.”19
The National Marine Fisheries Service’s (NMFS)
regulatory interpretation of Section 7 erroneously allows
it to carve out or exclude from its Section 7 cumulative
analysis a subset of the government’s coordinated plan
to develop wind turbine projects because those projects
have not yet undergone Section 7 consultation.20 As NMFS
states in its Biological Opinion for the Vineyard Wind 1
Project:
“Cumulative effects” are those effects of
future state or private activities, not involving
Federal activities, that are reasonably certain
to occur within the action area of the Federal
action subject to consultation (50 C.F.R.
§402.02). Future Federal actions that not part
of the proposed action are not considered in
this section because they require separate
consultation pursuant to section 7 of the ESA.
It is important to note that the ESA definition
of cumulative effects is not equivalent to the
definition of “cumulative impacts” under the
National Environmental Policy Act (NEPA). As
noted in Appendix A of the SETS, “Cumulative
impacts are the incremental effects of the
Proposed Action on the environment when
18. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14(h).
19. Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 475 (D.D.C.
2014) (quoting 16 U.S.C. § 1536(a)(2)).
20. 50 C.F.R. § 402.02 (defining “cumulative effects”).
8
added to other past, present, or reasonably
foreseeable actions taking place within the
region of the proposed Project, regardless
of which agency or person undertakes the
actions.” 21
NMFS’s regulatory carve-out directly conflicts with
the ESA, which commands NMFS to use the best available
science to evaluate the impacts of federal actions on an
endangered species.
The First Circuit’s decision, which upholds NMFS’
truncated Section 7 analysis, directly conflicts with
several decisions issued by the Ninth Circuit, including an
important decision that invalidated a Biological Opinion
for failure to consider all known effects of a future oil
and gas leasing project: “With the information available,
the [federal agency] could also have identified potential
conflicts between the protected species and post-leasing
activities. . . . [I]t is critical that ESA review occur early in
the process to avoid piecemeal chipping away of habitat.”22
21. 2021 Biological Opinion supra note 7 at 329 (internal
quotations omitted).
22. Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988); see
also Nat. Res. Def. Council v. Haaland, 102 F.4th 1045, 1069–70
(9th Cir. 2024) (holding that agency must make a meaningful
determination of a project’s impacts by looking beyond the
immediate project).
9
2.
Energy Policy Act of 2005
Congress passed the Energy Policy Act of 2005 to
allow the Minerals Management Service, an agency
within the Department of Interior (now the Bureau of
Ocean Energy Management or BOEM), to grant leases
for offshore renewable energy projects.23 The Act provided
that, because offshore wind development “will have
significant impacts on coastal and non-coastal areas of
the coastal States,” 24 all offshore development must be
“subject to environmental safeguards.” 25
In March 2021, the administration identified a series
of “bold actions” to “catalyze offshore wind energy”
development. 26 The White House stated its goal of
deploying 30 gigawatts of offshore wind energy by 2030
and announced that it was taking “coordinated steps to
support rapid offshore wind deployment.” 27 To meet the
2030 target, the administration announced that it planned
to advance new lease sales and complete review of “at least
16 Construction and Operations Plans (COPs) by 2025.” 28
23. Energy Policy Act of 2005, Pub. L. No. 109-58 (2005).
24. Id.
25. Id.
26. Biden Administration, Fact Sheet: Biden Administration
Jumpstarts Offshore Wind Energy Projects to Create Jobs (Mar.
29, 2021), https://www.whitehouse.gov/briefing-room/statementsreleases/2021/03/29/fact-sheet-biden-administration-jumpstartsoffshore-wind-energy-projects-to-create-jobs/.
27. Id.
28. Id.
10
As of today, 30 offshore wind projects are in various
stages of development, all of which will be located in,
along, or very near the endangered North Atlantic Right
Whale’s migration path and habitat. 29
3.
Section 7 of the Endangered Species Act
Requires Agencies to Consider All Known
and Best Available Science to Avoid Adverse
Impacts on Listed Species
Under Section 7 of the federal Endangered Species
Act, BOEM must consult with NMFS before taking any
action that may jeopardize endangered species, including
the North Atlantic Right Whale. 30
When the Biological Opinion was prepared for the
Vineyard Wind 1 Project, BOEM and NMFS were already
in the process of preparing an analysis of the threats
posed by wind turbine construction on the continued
existence of the Right Whale. In October 2022, BOEM
and NMFS authored and sent for comment a draft North
Atlantic Right Whale and Offshore Wind Strategy, in
which they recognize that wind turbine development
(from siting to decommissioning) must be undertaken
responsibly, including managing and mitigating the
impacts on the endangered North Atlantic Right Whale
and that the agencies must take precautions to ensure
that offshore wind development “is carried out in a
way that minimizes the potential for adverse effects to
the species and the ecosystems on which it depends.” 31
29. See Strategy on the North Atlantic Right Whale supra
note 8 at 5.
30. 16 U.S.C. § 1536(a).
31. See Bureau of Ocean Energy Management, Draft BOEM
and NOAA Fisheries North Atlantic Right Whale and Offshore
11
BOEM and NMFS published the final Strategy in January
2024. 32
The Strategy identifies “30 renewable energy lease
areas in the Atlantic Outer Continental Shelf ” 33 and
notes that the North Atlantic Right Whale has a “range
[that] overlaps with the area proposed for [offshore wind]
development. . . .” 34 The agencies acknowledge that “[t]he
activities associated with [offshore wind] development
would introduce or further contribute to existing
stressors in the environment that affect [North Atlantic
Right Whales].” 35 These stressors include “exposure to
noise and/or pressure (particularly from construction
activities),” 36 resulting in “hearing impairment, masking
of [North Atlantic Right Whale] vocal communication,
physiological impacts (e.g., stress), and/or behavioral
disturbance, as well as mortality and injury. . . .” 37
The agencies urged caution in authorizing offshore
wind projects because
[d]ue to the declining status of [North Atlantic
Right Whales], the resilience of this population
Wind Strategy (Oct. 2022) at 1, https://www.regulations.gov/
docket/BOEM-2022-0066/document.
32. See generally Strategy on the North Atlantic Right Whale
supra note 8.
33. Id. at 5.
34. Id.
35. Id. at 12.
36. Id.
37. Id.
12
to stressors affecting their distribution,
abundance, and reproductive potential is low.
The species faces a high risk of extinction, and
the population size is small enough that the
death of even very few individuals can have
a measurable effect on its population status,
trend, and dynamics. Furthermore, the loss of
even one individual a year . . . may reduce the
likelihood of species recovery and of their ability
to achieve optimum sustainable population. 38
When NMFS issued the operative Biological Opinion
for the Vineyard Wind 1 Project on October 18, 2021,
it failed to consider the impacts of any offshore wind
facility as part of its cumulative effects review and only
considered three projects, totaling 19 turbines, as part
of its environmental baseline: the South Fork Project (12
turbines), the Coastal Virginia Pilot Project (2 turbines),
and the (state-constructed) Block Island Project (5
turbines). 39
Even under NMFS’ truncated cumulative effects
definition and analysis, NMFS still should have considered
the impacts of an additional 316 turbines as part of the
environmental baseline because of how far along those
projects were in the approval process: Revolution Wind,
Sunrise Wind, Kitty Hawk, and Ocean Wind 1. NMFS
excluded these projects from any consideration for
the sole reason that the official Section 7 consultation
was not underway or complete.40 To satisfy the ESA’s
38. Id. at 8.
39. 2021 Biological Opinion supra note 7 at 143, 287.
40. Id. at 143.
13
requirements, NMFS should have considered the impacts
of all projects as part of the administration’s “coordinated”
steps to achieve renewable wind energy.
Notably, all of these planned projects will sit along
the migration path of the North Atlantic Right Whale,
as BOEM and NMFS are fully aware. In their Joint
Strategy to protect the Right Whales, the agencies stated
that these whales are “migrating along the U.S. Atlantic
Coast [and] have the potential to travel near or through
many currently proposed [offshore wind] developments
along the Atlantic Coast.”41 The offshore wind projects
that were planned and were known to the agencies will
be built “in areas that are important for [North Atlantic
Right Whale] vital functions.”42
REASONS FOR GRANTING THE PETITION
The federal government is approving the construction
of thousands of massive wind turbine structures on the
floor of the Atlantic Ocean offshore numerous communities,
such as Nantucket, Massachusetts, at a blistering pace.
These metal monopiles, known as “wind turbines,” are
being anchored to the ocean floor by thousands of tons of
rock and concrete to provide them support.43 These wind
turbines are being sited directly in the migration path of
the nearly extinct North Atlantic Right Whale.44
41. Id. at 14.
42. Id.
43. See 2021 Biological Opinion supra note 7 at 15–16.
44. See Strategy on the North Atlantic Right Whale supra
note 8 at 10.
14
The federal government’s planned and coordinated
offshore wind energy corridor, and the approved and
now partially constructed Vineyard Wind 1 Project off
the coast of Nantucket, Massachusetts, means that the
70 remaining breeding female Right Whales will have
to navigate through thousands of offshore wind turbine
projects to maintain reproductive integrity and survive
as a species. That the same federal agencies charged with
protecting our nation’s fragile endangered species and
their habitat could construe the Endangered Species Act
to mean that they could ignore the cumulative impacts
of the other planned wind turbine projects—limiting its
analysis to only the project under consideration—defeats
the purpose of the ESA.
Yet NMFS —under its ow n reg ulation, which
misinterprets the ESA to let the agency carve out a
portion of known impacts—ignored the cumulative
impacts of the government’s coordinated plan to construct
many wind turbine projects in the Atlantic Ocean. NMFS
instead issued its Biological Opinion limiting its analysis
to only the Vineyard Wind 1 Project’s impacts on the
Right Whale.45
The First Circuit erroneously rejected this crucially
important challenge to the agencies’ failure to comply
with the Endangered Species Act in approving the first
of thousands of wind turbines that will forever change the
ocean floor and affect hundreds of fish species, migratory
bird species, and perhaps render the final blow to the
North Atlantic Right Whale.
45. See 2021 Biological Opinion supra note 7 at 142–43.
15
1.
The First Circuit’s Decision Conflicts with the
Plain Language of the Endangered Species Act
The Endangered Species Act required NMFS
and BOEM to determine if the government’s actions
w ill jeopardize the Right W hale and then make
recommendations in its Biological Opinion regarding how
to avoid jeopardizing the whale species using the “best
scientific and commercial data available.”46 But instead
of analyzing all of the best information available, NMFS
intentionally chose to exclude from its analysis the effects
that the over two dozen offshore wind projects along the
Right Whale’s annual migration path, in various stages
of approval, will have on the remaining 338 members of
this nearly extinct whale species, directly contrary to the
ESA.47 By doing so, the Biological Opinion underreports
the specific and cumulative impacts of the Vineyard Wind
1 Project on the North Atlantic Right Whale.
A report jointly prepared by BOEM and NMFS warns
of the precarious status of the Right Whale, where losing
one individual may doom the species:
Due to the declining status of [North Atlantic
Right Whales], the resilience of this population
to stressors affecting their distribution,
abundance, and reproductive potential is low.
The species faces a high risk of extinction, and
the population size is small enough that the
death of even very few individuals can have
a measurable effect on its population status,
46. 16 U.S.C. § 1533.
47. Ctr. for Biological Diversity v. Regan, No. CV 21-119
(RDM), 2024 WL 1602457 (D.D.C. Apr. 12, 2024).
16
trend, and dynamics. Furthermore, the loss of
even one individual a year . . . may reduce the
likelihood of species recovery and of their ability
to achieve optimum sustainable population.48
Yet, as the Vineyard Wind Biological Opinion frankly
admits, NMFS ignored and did not analyze how other
offshore wind projects now on the drawing board along
the North Atlantic Right Whale’s annual migration route
will affect the species, taking the position that “other
[future] offshore wind energy development activities,”49
including construction of thousands of giant turbines on
millions of acres of ocean bed, could be ignored because
“they would require at least one Federal authorization
or permit and would, therefore require their own ESA
section 7 consultation requirements.”50 But nothing in
the ESA authorizes federal agencies to ignore known
threats to endangered species just because the activity
will require its own biological opinion in the future. 51
The agencies were fully aware of the likelihood that
Vineyard Wind was only a small segment of the much
larger, coordinated offshore wind development program
swiftly gaining government approval in other planned
projects underway, as the Biological Opinion reveals:
48. See Strategy on the North Atlantic Right Whale supra
note 8 at 8.
49. See 2021 Biological Opinion supra note 7 at 329.
50. Id.
51. See N. Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir.
1980) (“action” must be construed broadly).
17
BOEM presented a cumulative activities
scenario that identified the possible extent
of reasonably foreseeable offshore w ind
development on the Atlantic OCS [Outer
Continental Shelf]. As a result of this process,
BOEM has assumed that approximately 22
gigawatts of Atlantic offshore wind development
are reasonably foreseeable along the east coast.
As defined by BOEM in the SEIS, reasonably
foreseeable development includes 17 active
wind energy lease areas (16 commercial and 1
research). The level of development expected
to fulfill 22 gigawatts of offshore wind energy
would result in the construction of about
2,000 wind turbines over a 10-year period on
the Atlantic OCS, with currently available
technology. 52
But the agencies ignored these anticipated thousands
of giant wind turbines to be built along the East Coast
because, according to NMFS, “any future offshore wind
project will require section 7 consultation, these future
wind projects do not fit within the ESA definition of
cumulative effects and none of them are considered in this
[Biological] Opinion.”53
Petitioners pointed this out to the First Circuit in their
opening brief, which stated that a 2021 Quintana-Rizzo
study has the “best available scientific data” that NMFS
and BOEM ignored in preparing the Biological Opinion,
including discussions of recent shifts in Right Whale
52. See 2021 Biological Opinion supra note 7 at 330.
53. Id.
18
distribution: “‘[E]normous development [of offshore wind
projects] could have a local impact on right whales at a
critical time when they are becoming more reliant on the
region.’”54 Petitioners also noted that agencies ignored the
best available information, which warns that the offshore
wind projects “catalyze various perturbations” affecting
whale habitat, increased vessel noise and traffic, and the
risk of collision with whales. Petitioners told the First
Circuit that “‘[c]ollectively, these perturbations could
affect the use of this region by [R]ight [W]hales as well
as influence their migratory movement throughout the
mid-Atlantic region.’”55 As Petitioners aptly noted, the
Biological Opinion “does not assess the influence of these
perturbations” on the Right Whale and its use of the area
for this Project or the whales’ “migration through the
mid-Atlantic.”56
But the First Circuit sidestepped whether NMFS’
jeopardy analysis should have considered the impacts
54. Nantucket Residents Against Turbines v. U.S. Bureau
of Ocean Energy Mgmt., No. 23-1501, 2023 WL 6550487 *15
(1st Cir. Oct. 29, 2023) (quoting Ester Quintana-Rizzo et al.,
Residency, Demographics, and Movement Patterns of North
Atlantic Right Whales Eubalaena Glacialis in an Offshore Wind
Energy Development Area in Southern New England, USA, 45
Endangered Species Research (2021) at 252, https://repository.
library.noaa.gov/view/noaa/31617).
55. Id. at 16 (quoting Ester Quintana-Rizzo et al., Residency,
Demographics, and Movement Patterns of North Atlantic
Right W hales Eubalaena Glacialis in an Offshore Wind
Energy Development Area in Southern New England, USA, 45
Endangered Species Research (2021) at 253, https://repository.
library.noaa.gov/view/noaa/31617).
56. Id.
19
of other wind turbine projects because, as the First
Circuit explained, Petitioners had not shown that the
“construction and maintenance of hundreds of wind
turbines” throughout southern New England was
“incompatible” with the survival of the Right Whale.57 But
the point is not what Petitioners showed, but what NMFS
should have considered as the “best available science”
to evaluate whether all these additional wind turbines
will cumulatively and adversely affect the Right Whale’s
survival.
And the First Circuit’s conclusion that NMFS was
excused in evaluating the effects of these other projects
because it was only analyzing the effects of the Vineyard
Wind 1 Project is as circular as the wind turbines
themselves. 58
Academics have long decried the gulf between
the ESA’s statutory requirements and the agencies’
inconsistent and inadequate regulations:
While lawmakers envisioned these restrictions
as “the institutionalization of. . . . caution,”
implementation of the statute has instead
allowed a steady drumbeat of adverse impacts
from federal actions that incrementally push
protected species further toward the brink.
The U.S. Fish and Wildlife Service (FWS) and
National Marine Fisheries Service (NMFS),
the two expert agencies responsible for
assessing other federal agencies’ compliance
57. Pet. App. 31a.
58. 50 C.F.R. § 402.14.
20
with section 7’s prohibitions (collectively the
Services), routinely sanction actions that
negatively affect both listed species and
the habitat designated as essential to their
conservation—leaving species’ recovery to an
often unspecified, uncertain, and distant date
in the future. On their face, the prohibitions in
section 7(a)(2) appear to draw clear lines in the
sand that prevent actions by federal agencies
from driving threatened and endangered
species closer to extinction and gradually
diminishing habitat essential to these species’
recovery. However, both regulators tasked
with implementing the ESA have interpreted
this part of the statute to allow for continued
incremental declines of both listed species and
their designated critical habitat. 59
The statistics tell a story of agency neglect as more
than a dozen species have gone extinct under the federal
agency’s narrowed interpretation of its responsibility
under the ESA:
An analysis covering more than seven years
and ending in 2015 found that FWS issued
only two biological opinions concluding that
a federal project would jeopardize a listed
species (out of over 88,000 formal and informal
consultations); no opinion found destruction or
adverse modification of critical habitat. A study
evaluating biological opinions issued between
59. Daniel J. Rohlf & Colin Reynolds, Restoring the
Emergency Room: How to Fix Section 7(a)(2) of the Endangered
Species Act, 52 Envtl. L. 685, 686 (2022).
21
2005-2009 found a slightly higher incidence of
FWS biological opinions finding jeopardy and
destruction or adverse modification of critical
habitat—2.4% and 0.6% of BiOps respectively.60
Because the Vineyard Wind 1 Project’s Biological
Opinion explicitly states that it ignores and does
not consider the cumulative effects of other planned
projects on this severely endangered whale species, it
is directly contrary to the ESA’s no-jeopardy and best
available science requirements.61 Although the agencies’
interpretation of the ESA may have been entitled to
judicial deference in earlier days, this Court’s recent
Loper Bright decision62 leaves no doubt that the Courts—
not marine biologists—must determine the validity of the
agencies’ Biological Opinion with reference to the plain
language of the ESA. And that plain language demands
the use of “the best scientific and commercial data
available”63 —without exclusions set forth in the agencies’
ESA regulations.
2.
The First Circuit’s Decision Directly Conflicts
with Decisions of the Ninth and the D.C.
Circuits
The Vineyard Wind 1 Biological Opinion acknowledges
that NMFS ignored and did not analyze how other
60. Id.
61. 16 U.S.C. § 1536(a)(2).
62. Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244
(2024).
63. 16 U.S.C. § 1536(a)(2).
22
offshore wind projects now on the drawing board within
the North Atlantic Right Whale’s habitat and migration
routes will affect the species, taking the position that
“[f]uture offshore windfarms, as well as activities caused
by aspects of their development and operation,”64 including
construction of thousands of giant turbines on millions
of acres of ocean bed, could be ignored because “future
offshore wind project will require section 7 consultation.”65
When faced with a similar issue, the Ninth Circuit
reached an opposite decision that was consistent with
the ESA’s requirements. In Conner v. Burford,66 the
Ninth Circuit invalidated a Biological Opinion for a
federal oil and gas lease because it failed to consider
the environmental impacts of planned oil-and-gas-well
locations—even though each well location would later
be subject to a post-lease Section 7 consultation and its
own biological opinion, stating: “Although we recognize
that the precise location and extent of future oil and gas
activities were unknown at the time, extensive information
about the behavior and habitat of the species in the areas
covered by the leases was available.”67
In that case, the court explained that
incomplete information about post-leasing
activities does not excuse the failure to
64. See 2021 Biological Opinion supra note 7 at 117.
65. Id. at 330.
66. Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988).
67. Id. at 1454.
23
comply with the statutory requirement of a
comprehensive biological opinion using the best
information available. 16 U.S.C. § 1536(a)(2).
With the post-leasing and biological information
that was available, the FWS could have
determined whether post-leasing activities
in particular areas were fundamentally
incompatible with the continued existence of
the species.68
The Conner court flatly rejected the government’s
rationale—relied on in this Biological Opinion—that
cumulative effects of future projects could be ignored:
With the information available, the FWS could
also have identified potential conflicts between
the protected species and post-leasing activities
due to the cumulative impact of oil and gas
activities. For example, species like the grizzly
and the gray wolf require large home ranges
making it critical that ESA review occur early
in the process to avoid piecemeal chipping away
of habitat.69
A s the Ninth Circuit explained in Wild Fish
Conservancy v. Salazar:70
68. Id.; see also Nat. Res. Def. Council v. Haaland, 102 F.4th
1045, 1069–70 (9th Cir. 2024) (holding that agency must make a
meaningful determination of a project’s impacts by looking beyond
the immediate project).
69. Id.
70. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521–22
(9th Cir. 2010).
24
Conner rejected biological opinions addressing
only the first, preliminary stage in a multistage
project . T he ca se i nvolved t he federa l
government’s issuance of more than 700 leases
for oil and gas exploration in two national
forests. Before the leases were issued, the
Service prepared a biological opinion for each
forest. Concluding that there was “insufficient
information available to render a comprehensive
biological opinion beyond the initial lease
phase,” []the Service considered the effects only
of the leases themselves, not of the oil and gas
activity to follow on the leased land. [] Instead
of comprehensive biological opinions at the
leasing stage, the Service included in the leases
stipulations requiring additional environmental
consultation prior to any “surface-disturbing
activities.” []
We held that the limited scope of the biological
opinions violated the ESA. The Service’s
obligation, we said, was “to analyze the effect
of the entire agency action.” [] Because “[p]
umping oil and not leasing tracts is the aim
of congressional mineral leasing policy,”
the agency action necessarily encompassed
“not only leasing but leasing and all postleasing activities through production and
abandonment.” [] The Service’s proposal to
conduct “incremental-step consultation” was
an inadequate alternative. That approach might
result, for example, in the “piecemeal chipping
away of habitat” for endangered species. []
The Service was thus “required to prepare, at
the leasing stage, a comprehensive biological
25
opinion” considering “all phases of the agency
action.” [] Because it had not done so, the
biological opinions were invalid.71
In Thomas v. Peterson,72 the Ninth Circuit also
explained that the substantive requirements of the
ESA require more strict enforcement of its procedural
requirements compared to NEPA:
We acknowledge that the ESA’s substantive
provisions distinguish it from NEPA, but the
distinction acts the other way. If anything, the
strict substantive provisions of the ESA justify
more stringent enforcement of its procedural
requ i rement s , bec ause t he procedu r a l
requirements are designed to ensure compliance
with the substantive provisions. The ESA’s
procedural requirements call for a systematic
determination of the effects of a federal project
on endangered species. If a project is allowed
to proceed without substantial compliance
with those procedural requirements, there can
be no assurance that a violation of the ESA’s
substantive provisions will not result. The
latter, of course, is impermissible.73
Further and contrary to the First Circuit’s kneejerk
adoption of NMFS’ interpretation of what constitutes best
71. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521–22
(9th Cir. 2010).
72. Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).
73. Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985)
(citing TVA v. Hill, 437 U.S. 153).
26
available information under the ESA, the D.C. Circuit has
just recently ruled that, in cases that involve the proper
interpretation of the Endangered Species Act, it is the
Courts—not NMFS and its marine biologists—who must
determine the proper meaning of the statute.74 In Wild
Fish Conservancy v. Salazar,75 the court affirmed the
principle enunciated in the recent Lobstermen’s76 case—
that legal or procedural violations of ESA do not require
subject-matter expertise: “Where the opinion’s flaws are
‘legal in nature,’ however, ‘[d]iscerning them requires no
technical or scientific expertise[.]’” 77
3.
The First Circuit’s Erroneous Decision Will
Have Far-Reaching Implications on the Ocean
Environment and the Species that Depend on
It
Construction of wind turbine projects in the Atlantic
Ocean is occurring at a blistering pace. In March 2021, the
Biden administration identified a series of “bold actions”
to “catalyze offshore wind energy” development.78 The
74. Maine Lobstermen’s Ass’n v. Nat’l Marine Fisheries
Serv., 70 F.4th 582 (D.C. Cir. 2023).
75. Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th
Cir. 2010).
76. Maine Lobstermen’s Ass’n, 70 F.4th 582.
77. Wild Fish Conservancy, 628 F.3d at 532 (quoting Defs.
of Wildlife v. U.S. Env’t Prot. Agency, 420 F.3d 946, 976 (9th Cir.
2005)).
78. Biden Administration, Fact Sheet: Biden Administration
Jumpstarts Offshore Wind Energy Projects to Create Jobs (Mar.
29, 2021), https://www.whitehouse.gov/briefing-room/statements-
27
White House stated its goal of deploying 30 gigawatts of
offshore wind energy by 2030 and announced that it was
taking “coordinated steps to support rapid offshore wind
deployment.”79 To meet the 2030 target, the administration
announced that it planned to advance new lease sales
and complete review of “at least 16 Construction and
Operations Plans (COPs) by 2025.”80
As of today, 30 offshore wind projects (that together
will contain thousands of wind turbines) are in various
stages of development, all of which will be located in,
along, or very near the endangered North Atlantic Right
Whale’s migration path and habitat. 81
A NMFS study from 2021 identifies impacts on the
North Atlantic Right Whale, as well as other endangered
species, from wind energy development:
Wind energy development is anticipated to
rapidly expand along the U.S. East Coast in
the coming years. Through the end of 2020,
BOEM has issued 15 leases for offshore
wind development in areas ranging from
Massachusetts to North Carolina. If developed,
these projects will introduce both temporary
and long-term impacts including increased
underwater noise, habitat disturbance, and
releases/2021/03/29/fact-sheet-biden-administration-jumpstartsoffshore-wind-energy-projects-to-create-jobs/.
79. Id.
80. Id.
81. See Strategy on the North Atlantic Right Whale supra
note 8 at 5.
28
vessel traffic (e.g., associated with day-to-day
operations). 82
NMFS failed to analyze the effects of these coordinated
projects on the Right Whale, even when the agency knew
that these projects will be built in the areas where the
North Atlantic Right Whale migrates, as recognized by
BOEM and NOAA in their Joint Strategy to protect the
Right Whales: North Atlantic Right Whales “migrating
along the U.S. Atlantic Coast have the potential to travel
near or through many currently proposed [offshore wind]
developments along the Atlantic Coast.”83 Offshore wind
projects, many of which were not even considered by
NMFS in its Section 7 Consultation, “occur in areas that
are important for [North Atlantic Right Whale] vital
functions.”84
82. See National Marine Fisheries Service, Species in
the Spotlight: North Atlantic Right Whale, Priority Actions
2021–2025 at 13, https://media.fisheries.noaa.gov/2021-04/SIS%20
Action%20Plan%202021_NARightWhale-FINAL%20508.pdf (last
visited Sept. 16, 2024).
83. Id. at 14.
84. Id.
29
CONCLUSION
Petitioners ask this Court to grant review of the
important issue presented in this petition to resolve the
split among the circuits and provide guidance to lower
courts that will soon be facing the identical issue on how
to conserve endangered species while seeking to achieve
renewable energy objectives.
Respectfully submitted,
Nancie G. Marzulla
Counsel of Record
Roger J. Marzulla
Marzulla Law, LLC
1150 Connecticut Avenue, NW,
Suite 1050
Washington, D.C. 20036
(202) 822-6760
nancie@marzulla.com
Counsel for Petitioners
September 23, 2024
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT, FILED APRIL 24, 2024 . . . . . . 1a
APPENDIX B — MEMORANDUM AND ORDER
OF THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MASSACHUSETTS,
FILED MAY 17, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 33a
APPENDIX C — RELEVANT STATUTORY
PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT,
FILED APRIL 24, 2024
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 23-1501
NANTUCKET RESIDENTS AGAINST TURBINES;
VALLORIE OLIVER,
Plaintiffs, Appellants,
v.
U.S. BUREAU OF OCEAN ENERGY
MANAGEMENT; NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION; NATIONAL
MARINE FISHERIES SERVICE; DEBRA
HAALAND, SECRETARY OF THE INTERIOR;
GINA M. RAIMONDO, SECRETARY OF
COMMERCE; VINEYARD WIND 1, LLC,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before Kayatta, Lynch, and Gelpí, Circuit Judges.
April 24, 2024
2a
Appendix A
KAYATTA, Circuit Judge. After consulting with
the National Marine Fisheries Service (“NMFS”), the
U.S. Bureau of Ocean Energy Management (“BOEM”)
approved the construction of Vineyard Wind, a wind
power project off the coast of Massachusetts. A group
of Nantucket residents -- organized as Nantucket
Residents Against Turbines (“Residents”) -- allege that
the federal agencies violated the Endangered Species Act
by concluding that the project’s construction likely would
not jeopardize the critically endangered North Atlantic
right whale. The Residents further allege that BOEM
violated the National Environmental Policy Act by relying
on NMFS’s flawed analysis.
We disag ree. NMFS and BOEM followed the
law in analyzing the right whale’s current status and
environmental baseline, the likely effects of the Vineyard
Wind project on the right whale, and the efficacy of
measures to mitigate those effects. Moreover, the agencies’
analyses rationally support their conclusion that Vineyard
Wind will not likely jeopardize the continued existence of
the right whale. We therefore affirm the judgment of the
district court. Our reasoning follows.
I.
A.
This case lies at the intersection of four federal
environmental statutes: (1) the Outer Continental Shelf
Lands Act (“OCSLA”), (2) the Endangered Species
Act (“ESA”), (3) the Marine Mammal Protection Act
3a
Appendix A
(“MMPA”), and (4) the National Environmental Policy
Act (“NEPA”).
1.
OCSLA authorizes the Secretary of the Interior to
issue leases for offshore wind development. 43 U.S.C.
§ 1337(p)(1)(C). The Secretary has delegated her leasing
authority to BOEM. 30 C.F.R. § 585.100. Before issuing an
offshore lease, BOEM must “coordinate and consult with
relevant [f]ederal agencies,” and it must comply with the
consultation requirements of other federal environmental
statutes, such as the ESA. Id. § 585.203.
Once BOEM issues an offshore lease, its work is not
done. The agency must also approve a site assessment
plan and a construction and operations plan. See id.
§§ 585.605, 585.620. The construction and operations
plan must describe “all planned facilities that [the lessee]
will construct and use,” as well as “all proposed activities
including [the lessee’s] proposed construction activities,
commercial operations, and conceptual decommissioning
plans.” Id. § 585.620(a)-(b). No construction may begin
until BOEM approves the construction and operations
plan. Id. § 585.620(c).
2.
Under section 7 of the ESA, a federal agency must
consult with NMFS whenever an agency action “may
affect” an endangered marine species like the right whale.
50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(a)(2); see also 35
4a
Appendix A
Fed. Reg. 18319, 18320 (Dec. 2, 1970) (declaring the right
whale an endangered species). A section 7 consultation
ends with NMFS issuing a biological opinion. 16 U.S.C.
§ 1536(b)(3)(A). In that opinion, NMFS must determine
if the agency action is “likely to jeopardize the continued
existence” of the endangered species. 50 C.F.R. § 402.14
(h)(iv). NMFS must reach this determination after
reviewing the “best scientific and commercial data
available.” Id. § 402.14(g)(8).
Section 9 of the ESA generally prohibits the “take”
of an endangered species. 16 U.S.C. § 1538(a)(1)(B). To
“take” an endangered species means “to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect,”
the species, or “to attempt . . . any such conduct.” Id.
§ 1532(19). Relevant here are so-called “incidental takes.”
These are takes that “result from, but are not the purpose
of,” an agency’s or applicant’s otherwise lawful activity.
50 C.F.R. § 402.02.
Some incidental takes are allowed. 16 U.S.C. § 1536
(b)(4), (o). As relevant here, incidental take approval
requires NMFS to issue an “incidental take statement”
along with the biological opinion. 50 C.F.R. § 402.14(i);
16 U.S.C. § 1536(b)(4). That statement must, among
other things, (1) describe the extent of the anticipated
incidental take; (2) outline reasonable measures to reduce
and monitor such take; and (3) incorporate measures to
comply with section 101(a)(5) of the MMPA. See 50 C.F.R.
§ 402.14(i)(1).
5a
Appendix A
3.
When the animal to be taken is an endangered
marine mammal, NMFS may not “issue an incidental
take statement . . . under the ESA until the take has
been authorized under the MMPA. The incidental take
statement must incorporate any mitigation measures
required under the MMPA.” Ctr. for Bio. Diversity v.
Bernhardt, 982 F.3d 723, 742 (9th Cir. 2020) (internal
citations omitted).
Like the ESA, the MMPA regulates actions that
“harass” endangered species. See 16 U.S.C. §§ 1362(13),
1372(a). Under the MMPA, there are two types of
harassment. Level A harassment is “any act of pursuit,
torment, or annoyance” that has the “potential to injure
a marine mammal or marine mammal stock in the wild.”
Id. § 1362(18)(A)(i), (18)(C). Level B harassment is less
serious, and encompasses “any act of pursuit, torment,
or annoyance” that has the “potential to disturb a marine
mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns.” Id. § 1362(18)(A)(ii),
(18)(D). NMFS may authorize the incidental harassment
of a protected marine mammal if it makes certain factual
findings.1See 16 U.S.C. §§ 1373, 1374. This permission is
called an incidental harassment authorization.
1. The necessary findings will depend on the endangered
marine mammal. See 16 U.S.C. § 1373(a) (requiring the Secretary of
the Interior to prescribe regulations governing take of “each species
of marine mammal as he deems necessary and appropriate”); id.
§ 1374(b)(1) (mandating that any permit for taking an endangered
marine mammal comply with any applicable regulation promulgated
under section 1373).
6a
Appendix A
4.
Finally, there is NEPA. When a major federal agency
action will have significant environmental effects, NEPA
requires that the acting agency draft an environmental
impact statement. See 42 U.S.C. § 4332(C); 40 C.F.R.
§ 1502.3. That statement must analyze, among other
things, the “reasonably foreseeable environmental
effects” of the proposed action, the “reasonable range of
[technically and economically feasible] alternatives” to the
proposed action, and reasonable measures to mitigate the
environmental effects of the proposed action. 42 U.S.C.
§ 4332(C); see also Dubois v. U.S. Dep’t of Agric., 102 F.3d
1273, 1286 (1st Cir. 1996). When considering the effects
of a proposed agency action on an endangered species,
the environmental impact statement may rely on, or
incorporate the findings of, a biological opinion. See City
of Tacoma v. FERC, 460 F.3d 53, 75-76, 373 U.S. App.
D.C. 117 (D.C. Cir. 2006).
NEPA is a procedural statute. It “does not mandate
particular results, but simply prescribes the necessary
process” for evaluating an agency action’s environmental
effects. Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989). If
an environmental impact statement sufficiently analyzes
the likely environmental effects of a proposed agency
action, the agency can still proceed on the grounds that
“other values outweigh the environmental costs.” Id.
7a
Appendix A
B.
In 2 014, BOEM made a small por tion of the
Massachusetts Wind Energy Area -- a section of the Outer
Continental Shelf -- available for lease. See 79 Fed. Reg.
34771 (June 18, 2014). One year later, the agency leased a
plot measuring 675 square kilometers to Vineyard Wind
1, LLC.
In 2017, Vineyard Wind submitted a construction
and operations plan, proposing to build an offshore wind
project in the northern portion of the lease area (the “wind
development area”). The wind development area is located
approximately fourteen miles southeast of Martha’s
Vineyard, and it will host turbines capable of generating
approximately 800 megawatts of clean wind energy. That
is enough energy to power 400,000 homes.
The federal agencies then began the environmental
review process. In 2018, BOEM requested consultation
with NMFS pursuant to section 7 of the ESA. Consultation
began in April 2019. NMFS issued its first biological
opinion in September 2020, finding that the Vineyard
Wind project would likely not jeopardize the continued
existence of the right whale. The opinion also outlined
mitigation measures to reduce the project’s effects on the
right whale. After new science became available, NMFS
reinitiated consultation, eventually issuing an updated
biological opinion in October 2021. The updated opinion
also found that the project would likely not jeopardize the
right whale’s continued existence. Both the 2020 and 2021
versions of the biological opinion included incidental take
8a
Appendix A
statements. Those statements both concluded that, once
Vineyard Wind adopted appropriate mitigation measures,
the maximum anticipated take from project construction
was Level B harassment -- caused by installation noise
-- of twenty right whales.
BOEM issued its final environmental impact statement
in March 2021. The environmental impact statement
included its own analysis of how the proposed project
would affect right whales and other marine mammals. It
also included an appendix of mitigation measures.
In June 2021, relying on BOEM’S final environmental
impact statement, NMFS published notice of its decision
to issue an incidental harassment authorization for Level
B harassment of up to twenty right whales. The Residents
do not challenge the incidental harassment authorization,
which is the subject of a separate appeal before this court.
One month later, in July 2021, BOEM formally
approved the Vineyard Wind construction and operations
plan. Because NMFS’s updated biological opinion was still
pending at the time, BOEM’s approval was subject to any
new conditions or mitigation measures later identified
in the updated biological opinion. In the meantime,
BOEM’s approval notice imposed the mitigation measures
discussed in the environmental impact statement and the
2020 biological opinion. Several of those measures are
relevant here:
• Seasonal restrictions: Vineyard Wind
may not conduct any pile driving between
9a
Appendix A
January 1 and April 30. Right whales are
more likely to be present in the lease area
during this time of year.
• Noise attenuation: Vineyard Wind must
install technology that reduces the distance
that pile driving noise can travel underwater.
• Soft start requirements: Vineyard Wind
must precede pile driving with “three
strikes from the impact hammer at reduced
energy, followed by a 1-minute waiting
period.” This process must take place three
times before pile driving, so whales have
time to leave the area.
• Clearance and shutdown zones: Vineyard
Wind must determine that no whales are
within the clearance zone before pile driving
may begin, and it must immediately suspend
pile driving if a whale enters the shutdown
zone. The precise size of the clearance zone
depends on several factors, such as time of
year and type of foundation being installed.
The radius of the shutdown zone is 3.2
kilometers for all foundation types.
• Protected species observers: Vineyard
Wind must employ trained observers to
watch for whales in the clearance and
shutdown zones.
10a
Appendix A
• Passive acoustic monitoring: Vineyard
Wind must install monitoring technology
to detect whale noise within the clearance
and shutdown zones.
• Vessel speed limits: Project vessels must
travel at ten or fewer knots while going to,
from, or within the wind development area.
Vessels carrying crew members may go
faster, but they must use species observers
and acoustic monitoring to watch for whales.
If the crew vessels detect a whale, all vessels
must obey the ten-knot speed limit for the
rest of the day.
BOEM also imposed various post-construction
mitigation measures. Among other things, Vineyard Wind
must clean up the installation sites, monitor the health
of the seabed and local plankton populations, monitor
operational noise for at least three years, and share
survey data with both indigenous tribes and the federal
government.
In January 2022, after approving construction of
Vineyard Wind, BOEM expressly adopted the findings
of the updated October 2021 biological opinion. Given
the similarity between the 2020 and 2021 versions of the
biological opinion, BOEM concluded that “no further action
[was] required in order for Vineyard Wind to proceed with
construction and operation of the [wind project].”
11a
Appendix A
C.
In August 2021, the Residents challenged BOEM’s
approval of Vineyard Wind in the District of Massachusetts.
The Residents alleged that NMFS had violated the ESA
by issuing a deficient biological opinion about Vineyard
Wind’s effects on the right whale. They further alleged
that BOEM violated NEPA by failing to take the requisite
“hard look” at Vineyard Wind’s environmental impacts,
and by relying on the allegedly defective updated biological
opinion. The district court granted summary judgment to
the federal agencies on all claims. The Residents appealed.
In their main brief on appeal, the Residents focus
exclusively on alleged errors in NMFS’s updated biological
opinion. They challenge BOEM’s environmental impact
statement only to the extent it relied on that opinion.
We train our review accordingly, treating as waived any
other independent challenges to the environmental impact
statement. See Rife v. One W. Bank, F.S.B., 873 F.3d 17,
19 (1st Cir. 2017) (explaining that arguments not raised
or properly developed in the opening brief are waived).
Thus, we construe the Residents as arguing on appeal that
(1) NMFS violated the ESA by issuing a flawed biological
opinion, 2 and (2) BOEM violated NEPA by relying on
NMFS’s ostensibly flawed biological opinion.
2. For the remainder of this opinion, the phrase “biological
opinion” will refer to NMFS’s updated 2021 biological opinion, unless
otherwise specified.
12a
Appendix A
II.
We review the district court’s grant of summary
judgment de novo. Dubois, 102 F.3d at 1283. Summary
judgment is appropriate if there is “no genuine issue as
to any material fact and . . . the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
We review biological opinions under § 706 of the
Administrative Procedure Act. 3 See Pac. Coast Fed. of
Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426
F.3d 1082, 1090 (9th Cir. 2005); Strahan v. Linnon, No.
97-1787, 1998 U.S. App. LEXIS 16314, 1998 WL 1085817,
at *2 (1st Cir. July 16, 1998) (per curiam) (unpublished).
As a result, we have a “narrow role to play.” Dist. 4 Lodge
of the Int’l Ass’n of Machinists & Aerospace Workers Loc.
Lodge 207 v. Raimondo, 18 F.4th 38, 44 (1st Cir. 2021).
We may set aside “an otherwise proper agency action if
[the action] is arbitrary and capricious or . . . not based
on substantial evidence.” Id. (citing 5 U.S.C. § 706(2)(A),
(E)). This standard of review is deferential, especially
when the agency action involves “technical or scientific
matters within the agency’s area of expertise.” Citizen’s
Awareness Net., Inc. v. U.S. Nuclear Reg. Comm’n, 59
F.3d 284, 290 (1st Cir. 1995). To survive judicial review, the
agency need only show that it has “considered the relevant
factors and articulated a rational connection between the
facts found and the choice made.” Balt. Gas & Elec. Co. v.
Nat. Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S. Ct.
2246, 76 L. Ed. 2d 437 (1983); see also Motor Vehicle Mfrs.
3. The same goes for environmental impact statements. See
Dubois, 102 F.3d at 1284.
13a
Appendix A
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,
103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).
Meanwhile, when reviewing a lead agency’s reliance
on a consulting agency’s biological opinion, we must ask
whether the reliance itself was arbitrary and capricious.
See City of Tacoma, 460 F.3d at 75. Reliance can be
arbitrary and capricious if the underlying biological
opinion was deficient, or if the agency blindly adopted the
biological opinion without conducting its own independent
investigation. Id. at 75-76.
III.
The Residents’ critiques of the biological opinion upon
which BOEM’s environmental impact statement relied fall
into three buckets. First, the Residents allege that the
biological opinion failed to properly analyze the current
status and environmental baseline of the right whale.
Second, they allege that the biological opinion ignored
the effects of the Vineyard Wind project on right whales,
while relying on flawed measures to mitigate those effects.
Third, they allege that the biological opinion ignored the
project’s additive effects on the right whale’s long-term
recovery prospects.
We address each contention in turn.
A.
A consulting agency’s biological opinion must
“[e]valuate the current status and environmental baseline”
of the affected endangered or threatened species. 50
14a
Appendix A
C.F.R. § 402.14(g)(2). The phrase “environmental baseline”
refers to the “condition of the listed species . . . without
the consequences . . . caused by the proposed action.” Id.
§ 402.02. NMFS must root this evaluation in the best
available commercial and scientific data. Id. § 402.14(g)(8).
The Residents claim that the biological opinion
ignored the best available data about the right whale’s
current status and environmental baseline. They give
three examples to support this argument. None of them
is persuasive.
1.
The Residents argue that the biological opinion
ignored a recent study -- the Quintana-Rizzo study -- that
highlighted the growing importance of southern New
England waters for right whale survival. Specifically, the
Residents point to Quintana-Rizzo’s findings that right
whales are “becoming more reliant” on southern New
England waters, and that certain spots in southern New
England waters are “hotspot[s]” for whales to feed and
socialize.
The record belies this challenge to the biological
opinion. The opinion expressly acknowledged the growing
importance of southern New England waters for right
whales. For instance, the opinion noted that, as global
temperatures have ticked up, “the location of feeding
grounds has shifted, with . . . more [right whales] being
observed in Cape Cod Bay . . . and south of Nantucket.”
The biological opinion also expressly cited Quintana-
15a
Appendix A
Rizzo for the proposition that waters off Rhode Island
and Massachusetts “could be a feeding location for whales
that stay in the mid-Atlantic and north during the winterspring months and a stopover site for whales migrating to
and from calving grounds.” Finally, the biological opinion
again cited Quintana-Rizzo to note that right whales
“have been increasingly sighted” in waters off the coast
of Massachusetts. Thus, NMFS repeatedly acknowledged
that right whales are increasingly present in southern
New England waters. 4
Furthermore, the biological opinion cited QuintanaRizzo to note that certain “‘hotspots’ of higher use” had
emerged in southern New England waters. But NMFS
also noted Quintana-Rizzo’s finding that whales have
only used hotspots located in the project area during
the spring, when pile driving is banned. So, nothing in
Quintana-Rizzo’s hotspot analysis rendered unreasonable
the agency’s conclusion that Vineyard Wind likely did
not imperil the long-term survival of the right whale by
interfering with “hotspots” in southern New England.
2.
The Residents next point to a chart in Quintana-Rizzo
that illustrates a high rate of right whale sightings in the
Massachusetts and Rhode Island Wind Energy Areas
4. The Residents also suggest, in passing, that NMFS ignored
another study -- Hayes 2021 -- that emphasized the importance of
southern New England for the right whale. Because we find that the
biological opinion expressly considered that phenomenon, we need
not analyze Hayes 2021 individually.
16a
Appendix A
during August 2019. Broadly, Quintana-Rizzo looked at
aerial survey data collected between 2011-2015 and 20172019. And in most surveyed years, sighting rates were
highest between January and April, when pile driving
for the Vineyard Wind project is banned. But in August
2019, there was a spike in sighting rates. According to the
Residents, NMFS ignored the implication of this spike
-- that right whales are increasingly present during a
month (August) when pile driving is allowed. Thus, on the
Residents’ view, NMFS inadequately analyzed the current
status and environmental baseline of the right whale. 5
We disagree. In the biological opinion, NMFS
concluded that the “best available information regarding
marine mammal densities in the project area is provided
by habitat-based density models” produced by a laboratory
at Duke University. According to those models, right
whales were most likely to be in the project area between
January and April, with minimal presence in August. The
agency then concluded that Quintana-Rizzo -- even though
it relied on aerial surveys rather than habitat modeling
-- was consistent with the habitat-based models. Indeed,
Quintana-Rizzo found consistently high sighting rates
during the January—April period, with a solitary outlier
in August 2019. Thus, it was hardly unreasonable for
NMFS to conclude that January—April was still the most
popular timeframe for right whales in the project area.
5. The Residents also make this point to argue against the
efficacy of seasonal restrictions as a mitigation measure. Our analysis
here refutes that argument as well. We discuss the Residents’ other
challenges to Vineyard Wind’s mitigation measures later in this
opinion.
17a
Appendix A
At bottom, the Residents are basically arguing that
NMFS should have weighed Quintana-Rizzo’s August
2019 finding more heavily than it did. But courts must
“exercise great deference when [evaluating] claims about
competing bodies of scientific research.” See Nat’l Ass’n
of Mfrs. v. EPA, 750 F.3d 921, 924, 409 U.S. App. D.C.
425 (D.C. Cir. 2014). NMFS concluded that habitat-based
density models were the best available science on right
whale distribution patterns. The Residents have not shown
that this conclusion -- which itself “deserv[es] deference”
-- was unreasonable. See Miccosukee Tribe of Indians of
Fla. v. United States, 566 F.3d 1257, 1265 (11th Cir. 2009)
(citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 37778, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989)). NMFS then
concluded that Quintana- Rizzo was consistent with the
habitat-based density models. And based on our review
of Quintana-Rizzo, we cannot say that this conclusion
“jumped the rails of reasonableness.” Nat’l Ass’n of Mfrs.,
750 F.3d at 924. Accordingly, the agency’s decisionmaking
survives review.
3.
The Residents also argue that NMFS ignored data
from two other studies -- Pettis 2021 and Hayes 2021.
Both studies are annually updated assessments of right
whale population and mortality trends. The Residents
claim that NMFS ignored Pettis 2021’s finding that whale
deaths are outnumbering whale births, while dismissing
Hayes 2021’s finding that right whales have low resilience
to human-induced mortality. The Residents are mistaken
once again.
18a
Appendix A
Citing an earlier version of Pettis 2021 (i.e., Pettis
2020), the biological opinion clearly acknowledged that
“numbers of births are well below the number needed to
compensate for expected mortalities.” And the opinion
cited Pettis 2021 for the proposition that whale births
are less frequent because they now occur (on average)
every 7.6 years, which is an increase from historic calving
intervals of 3-5.8 years. Thus, NMFS acknowledged
the very finding in Pettis 2021 that the Residents claim
went unacknowledged: that right whales face long-term
population decline.
The Residents’ claims about Hayes 2021 fare no
better. While the biological opinion cites extensively to
Hayes 2021, the Residents complain that the agency did
not cite the study for the proposition that the right whale
has a potential biological removal of 0.8,6 and is therefore
susceptible to human-induced mortality. However, the
biological opinion plainly acknowledges that the right
whale’s “resilience to future perturbations is expected
to be very low.” Elsewhere, the biological opinion also
describes the right whale’s population size as “small
enough for the death of any individual to have measurable
effects.”
So, the biological opinion plainly discussed the unique
vulnerability of the right whale population to humaninduced mortality. Even if the agency did not explicitly
6. Potential biological removal means the “maximum number
of animals, not including natural mortalities, that may be removed
from a marine mammal stock while allowing that stock to reach or
maintain its optimum sustainable population.” 16 U.S.C. § 1362(20).
19a
Appendix A
cite Hayes 2021 to support that proposition, this does
not render the biological opinion’s findings arbitrary and
capricious. What matters is that the agency recognized
and acknowledged the phenomenon -- low resilience to
the human-caused death of just one whale -- that Hayes
2021 identified.7
B.
The Residents next take aim at the biological opinion’s
analysis of Vineyard Wind’s effects on right whales, and
its related conclusion that certain measures could mitigate
those effects. The Residents’ arguments address four
of Vineyard Wind’s potential effects on right whales:
(1) construction noise; (2) operational noise; (3) line
entanglement; and (4) vessel strikes. We address each in
turn.
1.
The Residents argue that the biological opinion
improperly analyzed the impact of construction noise (i.e.,
pile driving) on right whales. Basically, they argue that pile
driving is guaranteed to cause Level A harassment, even
7. To the extent the Residents are arguing that NMFS had to
cite Hayes 2021’s precise finding that right whales had a potential
biological removal of 0.8, that argument is waived. The district
court found that the Residents had not provided adequate notice of
this argument in their notice of intent to sue, and the Residents do
not challenge that holding on appeal. Nantucket Residents Against
Turbines v. U.S. Bureau of Ocean Energy Mgmt., 675 F. Supp. 3d
28, 54-55 (D. Mass. 2023).
20a
Appendix A
though the biological opinion found that such harassment
was “extremely unlikely.”
The Residents’ argument proceeds in three parts.
First, they assert that a whale is subject to Level A
harassment from construction noise when it is within 7.25
kilometers of the construction site. Second, they note that
the shutdown zone -- that is, the zone in which pile driving
must cease if a right whale is spotted -- only extends 3.2
kilometers from the site. The Residents suggest this
zone is too small, because a whale can linger in the noisy
zone (and thereby suffer Level A harassment) without
triggering a shutdown. Third, the Residents claim that the
measures to detect a whale in either the shutdown zone
or the broader noisy zone are only marginally effective.
So, the Residents argue, Level A harassment of at least
one whale is effectively guaranteed, despite the biological
opinion’s contrary finding.
Each link in the Residents’ logical chain is flawed.
First, the Residents’ foundational premise is wrong.
Level A harassment does not automatically occur when
a whale is within 7.25 kilometers of pile driving. The
Residents fundamentally misread the relevant section
of the biological opinion. As the government correctly
notes in its brief, the “7.25-kilometer area corresponds
to the area where Level A harassment . . . would result
after cumulative exposure during a 24-hour period in
which [a jacket foundation was] installed,”8 and where the
8. As the government’s brief explains, Vineyard Wind uses pile
driving to install two types of foundation. Monopile foundations are
for wind turbine generators, and they require “a single pile driven
21a
Appendix A
only minimization measure was 6-dB sound attenuation.
(Emphasis added). In other words, a whale within 7.25
kilometers of jacket foundation pile driving could only
experience Level A harassment if it remained in that zone
throughout the installation process, and if Vineyard Wind
only used one minimization measure. Under those same
conditions, immediate Level A harassment would only
occur during jacket foundation installation if a right whale
got within four meters of the pile driver. The Residents
never assert that this is likely to happen.
Second, the Residents’ challenge to the size of the
3.2-kilometer shutdown zone is moot to the extent it
applies to jacket foundation installation. An appeal is moot
if the reviewing court “cannot affect the matter in issue
or cannot grant effectual relief.” In re Cont. Mortg. Invs.,
578 F.2d 872, 877 (1st Cir. 1978). Here, Vineyard Wind has
completed all jacket foundation pile driving. There is no
indication that it will resume. So, even if NMFS violated
the ESA by relying on a 3.2-kilometer shutdown zone
to mitigate noise-related take from jacket foundation
installation (an issue we expressly do not decide), we can
no longer grant any injunctive relief that would remedy
that violation. See Ogunquit Vill. Corp. v. Davis, 553 F.2d
243, 245-47 (1st Cir. 1977) (finding that the court was
“unable to fashion a [generally applicable] remedy” for
NEPA violations once the challenged project had been
completed, and further stating that the responsibility for
crafting such a remedy lay with Congress).
into the ground.” Jacket foundations are for support infrastructure
and electrical service platforms. They require “three or four smaller
piles driven into the ground.”
22a
Appendix A
The Residents retort that NMFS’s alleged violation
of the ESA falls under the mootness exception for claims
“capable of repetition, yet evading review.” But this
exception applies only when: “(1) the challenged action
was in its duration too short to be fully litigated prior to
its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will]
be subjected to the same action again.” Weinstein v.
Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350
(1975) (per curiam). There is no reasonable expectation
that Vineyard Wind will install jacket foundations at the
same location again. Accordingly, the exception does not
apply, and the Residents’ challenge to the 3.2-kilometer
exclusion zone -- as it pertains to jacket foundation
installation -- is moot.9
Because the jacket foundations are complete, the only
remaining pile driving involves monopile foundations. So,
could the Residents simply apply their “shutdown zone is
too small” argument to monopile foundation installation’
The answer is no. According to the biological opinion, the
cumulative Level A harassment threshold for monopile
foundation installation (assuming 6-dB noise attenuation)
9. The Residents also assert that their claims fall under a
mootness exception for issues of “great public import.” But they cite
only California state case law to support the existence of such an
exception. The Residents do not identify -- nor could we find -- any
controlling federal case that has recognized a “public importance”
exception to the mootness doctrine. And this makes sense. Federal
courts may only decide live “Cases” or “Controversies.” See U.S.
Const. art. III, § 2. Where no actual controversy exists, a federal
court may not offer an advisory opinion. Mangual v. Rotger-Sabat,
317 F.3d 45, 60 (1st Cir. 2003).
23a
Appendix A
is just under 3.2 kilometers. In other words, the standard
3.2-kilometer shutdown zone completely covers the area in
which a right whale could be subject to cumulative Level
A harassment from monopile foundation installation. So, if
a right whale is detected in the zone affected by monopile
foundation installation noise, a shutdown is mandatory.
Therefore, the Residents’ only remaining argument
is that NMFS’s proposed mitigation measures cannot
reliably detect a whale within the 3.2-kilometer shutdown
zone around monopile installation. And that brings us to the
third faulty link in the Residents’ logic. The Residents cite
no record data for the proposition that NMFS’s proposed
mitigation measures -- soft start procedures, protected
species observers, and passive acoustic monitoring -- are
ineffective at deterring a whale from, or detecting a whale
within, the 3.2-kilometer shutdown zone.
The biological opinion found that soft start procedures
-- which require Vineyard Wind to precede pile driving
with quieter strikes that give right whales time to swim
away -- were “expected to reduce [the] effects” of pile
driving noise on right whales. The Residents retort that
the biological opinion found no evidence that soft start
procedures were effective. But once more, the Residents
misapprehend the biological opinion’s plain language.
NMFS expressly stated that soft start procedures would
“likely . . . reduce the duration of exposure to noise that
could result in Level A or Level B harassment.” The
agency then stated that it could not precisely quantify
the effect of soft start procedures on right whale take. So,
the agency opted for a conservative approach, and did not
24a
Appendix A
“modify the estimated take numbers to account for any
benefit provided by the soft start.” Read in context, then,
the biological opinion did not reflect a lack of confidence
in soft start procedures. Instead, it reflected NMFS’s
cautious approach to calculating incidental take.
The biological opinion also found that acoustic
monitoring and protected species observers, deployed in
concert, are “highly effective.” In response, the Residents’
brief cites data from Natural Resources Defense Council
v. Pritzker, 62 F. Supp. 3d 969 (N.D. Cal. 2014).10 That case
reviewed an NMFS rule approving the United States
Navy’s use of low frequency sonar during peacetime
training and testing operations. Pritzker, 62 F. Supp.
3d at 979. Among other things, the challenged final rule
concluded that passive acoustic monitoring had a “25
percent detection probability” with respect to marine
mammals, while visual monitoring by protected species
observers had a “nine percent detection probability.” Id.
at 996 (quoting 77 Fed. Reg. 50290, 50307 (Aug. 20, 2012)).
Thus, the Residents argue, NMFS’s proposed mitigation
measures are at best 34 percent effective (25 percent plus
9 percent), which is purportedly too low to justify NMFS’s
confidence that construction noise is highly unlikely to
cause Level A harassment to right whales.
We leave aside the broader question of whether a 34
percent detection probability is indeed too low to avoid
Level A harassment. We also leave aside the fact that
10. The district court’s decision in Pritzker was later reversed
and remanded by the Ninth Circuit. See Nat. Res. Def. Council, Inc.
v. Pritzker, 828 F.3d 1125, 1142 (9th Cir. 2016).
25a
Appendix A
Pritzker is a decade-old, vacated district court decision
involving an entirely different project. The Residents’
argument fails for a more fundamental reason: The
Residents never brought the Pritzker data to the agencies’
attention. As the government notes, the Residents never
flagged the Pritzker data in their comment letters or
notice of intent to sue. And the Residents do not contend
otherwise. Accordingly, we cannot consider the Pritzker
data for the first time on review.11See, e.g., Camp v. Pitts,
411 U.S. 138, 142, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973) (per
curiam) (noting that in a case applying the Administrative
Procedure Act, “the focal point for judicial review should
be the administrative record already in existence, not
some new record made initially in the reviewing court”);
United States v. L. A. Tucker Truck Lines, Inc., 344
U.S. 33, 37, 73 S. Ct. 67, 97 L. Ed. 54 (1952) (describing
the “general rule” that “courts should not topple over
administrative decisions unless the administrative body . .
. has erred against objection made at the time appropriate
under its practice”).
In sum, the Residents cannot show that NMFS’s
conclusion that operational noise from Vineyard Wind was
unlikely to subject any right whale to Level A harassment
was arbitrary and capricious. Accordingly, their challenge
under the ESA must fail.
11. The Residents also cite Native Village of Chickaloon v.
NMFS, 947 F. Supp. 2d 1031 (D. Alaska 2013) to argue that passive
acoustic monitoring is ineffective. We reject this argument for the
same reason we reject the Residents’ reliance on Pritzker.
26a
Appendix A
2.
The Residents next argue that NMFS irrationally
dismissed a study (Stober 2021) that analyzed the effects
of wind turbine operational noise on right whales.
The Residents entirely ignore the biological opinion’s
extensive analysis of Stober 2021. After detailing the
study’s methodology, NMFS gave four reasons for
limiting its reliance on the study. First, the study itself
acknowledged “unresolved uncertainty in [its] methods.”
Second, the study’s estimates of operational noise for
the turbines that Vineyard Wind would use were “just
a prediction and . . . not based on an in situ evaluation
of underwater noise of a 10 MW direct-drive turbine.”12
Third, Stober 2021 did not consider contextual factors that
could alter how turbine noise moved through water, such as
“water depth, sediment type, [and] wind speed.” Fourth,
Stober 2021 itself suggested that turbine operational noise
“may not be detectable above ambient noise,” undermining
the argument that operational noise would harass nearby
marine mammals.
Given these limitations, the biological opinion instead
relied on operational noise measurements from a wind
farm off Block Island. The agency’s determination that
these measurements were the best available science
commands deference. See Miccosukee Tribe, 566 F.3d at
12. Contrary to the Residents’ assertions, NMFS did not
dismiss Stober 2021 on the grounds that it only analyzed older
gearbox turbines. The agency expressly acknowledged that the study
evaluated the “direct-drive turbines” deployed by Vineyard Wind.
27a
Appendix A
1265. And the Residents scarcely engage with the agency’s
stated rationale for relying on the Block Island data rather
than Stober 2021. Accordingly, we will not substitute our
judgment for that of the expert agency. See Nat’l Ass’n of
Mfrs., 750 F.3d at 924.
3.
The Residents next argue that the biological opinion
ignored two phenomena that heighten the risk of right
whales dying from entanglement in fishing lines.
First, the Residents claim that the biological opinion
ignored the entanglement risk from lines that Vineyard
Wind will install to perform fishery studies. This is simply
not true. The biological opinion expressly considered
the risk of entanglement in those lines. It found such
entanglement “extremely unlikely,”13 given the low density
of whales during the period when Vineyard Wind will
conduct fishery studies; the small number of fishing lines;
the short duration of the proposed fishery studies; and
the tiny territory in which the study will take place. The
Residents neither acknowledge nor discredit the agency’s
reasoning on this front.
13. The Residents cherry-pick this language to suggest that
NMFS dismissed as “extremely unlikely” the prospect that a whale
would ever die from entanglement in fishing lines. Of course, that is
not at all what the biological opinion said. The “extremely unlikely”
language refers to the risk of entanglement from the Vineyard Wind
fishery studies, not overall entanglement risk within or outside the
wind development area.
28a
Appendix A
Second, the Residents claim that the biological opinion
ignored the best available science on entanglement
risk, which allegedly suggested that construction and
operational noise would drive whales into a fishing area
(“Area 537”) with densely concentrated fishing lines.
This enforced shift in whale distribution would, in turn,
increase entanglement risk. The Residents assert that
this phenomenon was outlined in a memorandum -- which
NMFS supposedly neglected -- called the Atlantic Large
Whale Take Reduction Team Key Outcomes Memorandum
(“TRT Memo”).
NMFS considered the broader impact of construction
and operational noise on whale distribution patterns.
For example, the agency examined whether construction
noise would drive whales into parts of Area 537 with
more ship traffic. The agency concluded that this was
unlikely, given that pile driving is banned during months
with high whale density. The same logic applies to the
Residents’ concern about entanglement risk, because
entanglement is most likely in the January—April period
when pile driving is banned. The biological opinion also
found that noise pollution from the project would not alter
the overall distribution of right whales. The Residents do
not challenge these clear findings.
Moreover, NMFS did, in fact, review the TRT Memo.
And nothing in that memo states that construction or
operational noise will drive whales into portions of Area
537 with greater entanglement risk. The memo simply
says that NMFS should consider fishing closures in Area
537. So, the Residents’ fear about increased entanglement
29a
Appendix A
risk is purely speculative. And NMFS was not required
to account for entirely speculative environmental effects
that were neither suggested nor supported by the scientific
evidence. See 50 C.F.R. § 402.14(h)(iii) (biological opinion
must discuss “effects” of proposed action on endangered or
threatened species); id. § 402.02 (the “effect” of a proposed
agency action is a consequence that is “reasonably
certain to occur”); see also Endangered and Threatened
Wildlife and Plants; Regulations for Interagency
Cooperation, 84 Fed. Reg. 44976, 44993 (Aug. 27, 2019)
(“[T]he determination of a consequence to be reasonably
certain to occur . . . should not be based on speculation or
conjecture.”).14
4.
The Residents then argue that the biological opinion
ignores how the Vineyard Wind project will increase the
risk of vessel strikes on right whales.
The Residents first argue that the ten-knot restrictions
on vessel speed in the wind development area are
insufficient, because crew transfer vessels are exempt. But
crew transfer vessels must include species observers and
14. After oral argument in this case, the U.S. Fish and Wildlife
Service published new regulations revising the definition of “effects
of the action” under the ESA. See Endangered and Threatened
Wildlife and Plants; Regulations for Interagency Cooperation, 89
Fed. Reg. 24268 (Apr. 5, 2024) (to be codified at 50 C.F.R. pt. 402).
But NMFS and BOEM issued their environmental review documents
under the prior regulations, which were published in 2019. We
therefore limit our analysis to those earlier regulations.
30a
Appendix A
passive acoustic monitoring to survey for nearby whales.
If a whale is spotted, the ten-knot speed limit applies to
all crew transfer vessels for the rest of the day. And as
discussed above, the Residents have supplied no adequate
ground on which to challenge the efficacy of passive
acoustic monitoring or protected species observers.
They therefore cannot demonstrate that NMFS acted
arbitrarily by relying on those measures to mitigate the
risk of vessel strikes.
The Residents also argue that project noise will drive
whales into portions of Area 537 with more vessel traffic.
As already discussed, the biological opinion expressly
rejected this argument. And this is unsurprising -- it is not
even clear that there are areas near the wind development
area with substantially higher vessel traffic. Indeed, as
the government notes, the “only areas outside of the lease
[area] with higher vessel traffic are shipping lanes with
commercial traffic located 21 to 30 miles from the project.”
The Residents do not explain why any project-related
noise disturbance would not dissipate well before a whale
had swum thirty miles away from the wind development
area. Thus, the Residents’ concern about project noise
increasing vessel strike risk is speculative, and insufficient
to support a challenge under the ESA.
C.
The Residents next contend that NMFS failed to
consider how the additive effects of the Vineyard Wind
project would jeopardize the continued existence of the
right whale. Under the implementing regulations of the
31a
Appendix A
ESA, NMFS must “[a]dd the effects of the action and
cumulative effects to the environmental baseline and
in light of the status of the species and critical habitat,
formulate [an] opinion as to whether the action is likely to
jeopardize the continued existence of” the listed species.
50 C.F.R. § 402.14(g)(4).
The Residents’ briefing on this topic breaks little
new ground. Instead, the Residents largely repeat the
arguments detailed above, which we have already found
unpersuasive. There is only one new argument in the
Residents’ briefing that might be relevant. The Residents
point to language in Quintana-Rizzo, which suggests that
widespread wind farm development in southern New
England could broadly “affect the use of [the] region
by right whales” and influence right whale migration
throughout the mid- Atlantic.
These generalized statements do not render the
biological opinion’s no-jeopardy conclusion arbitrary
and capricious. As an initial note, Quintana-Rizzo was
describing the potential risks of “[t]he construction and
maintenance of hundreds of wind turbines” throughout
southern New England. It was not specifically analyzing
Vineyard Wind. Also, the Quintana-Rizzo study did not
suggest that right whale survival was incompatible with
wind energy development. Instead, it urged policymakers
to implement comprehensive monitoring and mitigation
plans. That is what NMFS did here. And as discussed,
the Residents have not demonstrated that the agency’s
proposed mitigation measures are inadequate, or that
reliance on those measures was arbitrary and capricious.
32a
Appendix A
D.
Finally, the Residents argue that BOEM violated
NEPA by relying on NMFS’s allegedly defective biological
opinion. Recall that while an agency may rely on the
findings in a biological opinion, such reliance is arbitrary
and capricious if (1) the biological opinion is defective,
or (2) the agency blindly relies on the biological opinion
without conducting its own independent analysis. See City
of Tacoma, 460 F.3d at 75-76.
Neither criterion is satisfied here. For the reasons
discussed above, NMFS’s biological opinion was not
defective. Therefore, BOEM properly relied on it. Id.
Moreover, BOEM did not blindly rely on the biological
opinion. Instead, BOEM’s environmental impact statement
includes a lengthy analysis of the Vineyard Wind project’s
likely effects on right whales.15 As a result, we cannot
conclude that BOEM’s reliance on the NMFS biological
opinion violated NEPA. Id.
IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
15. Although the Residents try to challenge portions of that
standalone analysis in their reply, they failed to invoke those
arguments in their opening brief. So, as discussed above, the
Residents’ specific challenges to BOEM’s environmental impact
statement are waived. See Rife, 873 F.3d at 19.
33a
Appendix B
APPENDIX B — MEMORANDUM
AND ORDER
OF THE UNITED STATES DISTRICT COURT OF
THE DISTRICT OF MASSACHUSETTS,
FILED MAY 17, 2023
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 1:21-cv-11390-IT
NANTUCKET RESIDENTS AGAINST TURBINES
AND VALLORIE OLIVER,
Plaintiffs,
v.
U.S. BUREAU OF OCEAN ENERGY
MANAGEMENT, et al.,
Defendants,
and
VINEYARD WIND 1 LLC,
Intervenor-Defendant.
May 17, 2023, Decided;
May 17, 2023, Filed
34a
Appendix B
MEMORANDUM & ORDER
TALWANI, D.J.
Plaintiffs, Nantucket Residents Against Turbines
(“ACK RATs”) and Vallorie Oliver, a founding member of
ACK RATs, bring this action against the U.S. Bureau of
Ocean Energy Management (an agency within the U.S.
Department of the Interior) and Deb Haaland in her
official capacity as Secretary of the Interior (collectively,
“BOEM”) and the National Marine Fisheries Service
(an agency within the Department of Commerce) and
Gina Raimondo in her official capacity as Secretary of
Commerce (collectively, “NMFS”). Plaintiffs contend that
BOEM and NMFS’s decisions approving an offshore wind
energy project off the coast of Martha’s Vineyard and
Nantucket (the “Vineyard Wind Project” or the “Project”)
was based on inadequate environmental assessments
in violation of the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 1421, et seq., the Endangered
Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq., and the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701706. This action is one of four pending challenges to the
Project in this District.1
Now before the court are cross-motions for summary
judgment by Plaintiffs [Doc. No. 88], Defendants [Doc.
No. 95], and Defendant-Intervenor Vineyard Wind 1 LLC
(“Vineyard Wind”) [Doc. No. 99].
1. See Melone v. Coit et al., 1:21-cv-11171-IT; Seafreeze
Shoreside, Inc. et al. v. Dep’t of Interior et al., 1:22-cv-11091-IT;
Responsible Offshore Development Alliance v. Dep’t of Interior
et al., 1:22-cv-11172-IT (“the Related Actions”).
35a
Appendix B
I.
Background Concerning the Project
The follow ing backg round is draw n from the
Administrative Record, as certified by BOEM and
NMFS, and is common to all four pending challenges to
the Project.
A.
BOEM’s Development of The Wind Energy
Area
In 2009, BOEM began evaluating the possibility of
developing wind energy in the Outer Continental Shelf
offshore from Massachusetts pursuant to BOEM’s
authority under the Outer Continental Shelf Lands Act
(“OCSLA”), 43 U.S.C. § 1331, et seq. Final Environmental
Impact Statement (“Final EIS”) Vol. II, BOEM_0068786
at -9170. In December 2010, BOEM published an initial
Request for Interest (“RFI”) regarding wind energy
development in the Outer Continental Shelf offshore from
Massachusetts. The RFI also invited public submissions
on environmental issues. Id.; see also Joint Record of
Decision (“Joint ROD”), BOEM_0076799 at -6802 (citing
75 Fed. Reg. 82,055 (Dec. 29, 2010)). In response to
comments, BOEM reduced the planning area by 50%.
Final EIS Vol. II, BOEM_0068786 at -9170.
In February 2012, BOEM published a Call for
Information and Nominations in the Federal Register
to gauge interest in commercial leases for wind energy
projects. Id. (citing 77 Fed. Reg. 5821 (Feb. 6, 2012)).
BOEM also published a notice of intent to prepare an
environmental assessment in connection with potential
36a
Appendix B
wind energy leases and site assessment activities offshore
from Massachusetts. Id.
In May 2012, BOEM identified a further reduced area
for consideration for potential wind energy development
(“the Wind Energy Area”) in the Outer Continental
Shelf south of Nantucket and Martha’s Vineyard,
Massachusetts, based on public comments concerning high
sea duck concentrations and an area of high-value fisheries.
Final EIS Vol. II, BOEM_0068786 at -9170. BOEM then
prepared an Environmental Assessment, regarding the
proposed Wind Energy Area, to guide its leasing. See
2014 Revised Env’t Assessment, BOEM_0000090 at -118.
In June 2014, BOEM issued its Revised Environmental
Assessment concerning the proposed wind energy area.
Id. At the time, BOEM concluded leasing and site
assessment actions would not significantly impact the
environment. Id. at -100.
On June 18, 2014, BOEM published a proposed sale
notice and invited public comment on a proposal to sell
four wind energy leases in the Wind Energy Area. Final
EIS Vol. II, BOEM_0068786 at -9171. Following public
comment, BOEM published a final sale notice reflecting its
intent to sell commercial wind energy leases in the Wind
Energy Area, including Lease “OCS-A 0501.” See Final
EIS Vol. II, BOEM_0068786 at -9171, -9235.
B. BOEM’s Award of the Lease
In January 2015, BOEM conducted a competitive
lease sale for Lease OCS-A 0501 (the “Lease”), ultimately
37a
Appendix B
awarding the Lease to Offshore MW, LLC, later renamed
Vineyard Wind 1, LLC. Final EIS Vol. II, BOEM_0068786
at -9171. The lease area covers 166,886 acres in the Outer
Continental Shelf (the “Lease Area”). Id.; April 1, 2015
Lease, BOEM_0000764 at -0776.
The Lease became effective April 1, 2015. Id. at
BOEM_0000764. The Lease granted Vineyard Wind
the right to seek approval for a Site Assessment Plan
(“SAP”) and a Construction Operations Plan (“COP”).
Id. On November 22, 2017, Vineyard Wind submitted
a Site Assessment Plan (“SAP”) to BOEM for the
Vineyard Wind Lease Area. May 10, 2018 Approval of
SAP, BOEM_0013366. On May 10, 2018, BOEM approved
Vineyard Wind’s SAP, subject to numerous conditions,
including for the protection of cultural resources,
marine mammals and sea turtles, and implementation of
mitigation measures. Id.
C.
Biological Review(s) of the Project’s Impacts
by BOEM and NMFS
1.
Environmental Impa ct Statement(s)
prepared by BOEM
On December 19, 2017, Vineyard Wind submitted
to BOEM for consideration under OCSLA a proposed
COP for the Project to be constructed in 65,296 acres
of the Vineyard Wind Lease Area, referred to as the
Wind Development Area or “WDA.” Dec. 19, 2017 COP
Submission Letter, BOEM_0006004-06; December 19, 2017
COP BOEM_0001361-6003. On March 30, 2018, BOEM
38a
Appendix B
published a notice of its intent to prepare an EIS for the
COP. 83 Fed. Reg. 13,777 (Mar. 30, 2018), BOEM_0012028.
The notice described the Project and invited the public to
participate in public comment and public scoping meetings
BOEM later conducted. Id.; BOEM_012406-13078 (April
2018 meeting transcripts)). On December 7, 2018, BOEM
published a notice of availability of the Draft EIS in the
Federal Register. 83 Fed. Reg. 63,184 (Dec. 7, 2018),
BOEM_0034694. As summarized in the notice, the Draft
EIS analyzed the proposed COP and several alternatives,
including different locations for cable landfall, reduction
in project size, several options for turbine layout, and
a no-action alternative. Id. The notice invited public
comment and/or participation at public hearings BOEM
later conducted. Id.; see also BOEM_035872-36269 (Draft
EIS public meeting transcripts).
Vineyard Wind submitted numerous updates to the
proposed COP over the course of BOEM’s review. See
Final EIS Vol. I, BOEM_0068434 at -8440 (listing prior
iterations of the COP). The updates addressed comments
from BOEM, modified the Project design envelope, and
accounted for the possibility of higher capacity wind
turbine generators, which would ultimately reduce the
number of wind turbines to be installed and reduce the
total Project area. See, e.g., Jan. 22, 2021 Letter from
Vineyard Wind to BOEM, BOEM_0067698-7701.
On June 12, 2020, BOEM published a notice in the
Federal Register that the supplement to the Draft EIS
(“Supplemental Draft EIS”) was available on BOEM’s
website, invited public comment in connection with
39a
Appendix B
the notice and participation at public meetings BOEM
later held virtually. 85 Fed. Reg. 35,952 (June 12,
2020), BOEM_0057578; June-July 2020 Public Meeting
Transcripts, BOEM_058001-59241. BOEM prepared
the Supplemental Draft EIS “in consideration of the
comments received during the [NEPA] process and in
connection with cooperating agencies.” Supplemental
Draft EIS, BOEM_0056950 at -6954. In particular, BOEM
expanded its analysis of the reasonably foreseeable effects
from cumulative activities for offshore development,
included previously unavailable fishing data, considered
a new transit lane alternative through the WDA, and
addressed changes to the proposed COP since publication
of the Draft EIS. Joint ROD, BOEM_0076799 at -680304; 85 Fed. 35,952 (June 12, 2020), BOEM_0057578;
Supplemental Draft EIS, BOEM_0056950 at -6954. The
transit lane alternative that was included was in response
to a proposal from the Responsible Offshore Development
Alliance for a northwest/southeast transit corridor to
facilitate transit for fishing vessels from southern New
England to fishing areas. Supplemental Draft EIS,
BOEM_0056950 at -6958.
On December 1, 2020, Vineyard Wind notified
BOEM that it was withdrawing the proposed COP from
review in order to conduct a technical and logistical
review of the turbines selected for inclusion in the final
Project design. Dec. 1, 2020 Vineyard Wind Letter to
BOEM, BOEM_0067649-50; see also Final EIS Vol. I,
BOEM_0068434 at -8440 n.3. Vineyard Wind’s notice
of withdrawal indicated that Vineyard Wind intended
to rescind the withdrawal upon completion of its due
40a
Appendix B
diligence review. Dec. 1, 2020 Vineyard Wind Letter
to BOEM, BOEM_0067649-50. On December 16, 2020,
following Vineyard Wind’s notification that it was
withdrawing the COP pending further technical and
logistical review, BOEM published a notice in the Federal
Register stating that “since the COP has been withdrawn
from review and decision-making, there is no longer a
proposal for major federal action awaiting technical and
environmental review, nor is there a decision pending
before BOEM . . . [the] notice advises the public that the
preparation of an EIS is no longer necessary, and the
process is hereby terminated.” Fed. Reg. 81,486 (Dec. 16,
2020), BOEM_0067694.
On January 22, 2021, Vineyard Wind notified BOEM
that Vineyard Wind had completed its review and “had
concluded that the proposed turbines did not fall outside
of the project design envelope being reviewed in the COP”
and requested that BOEM resume review of the COP,
most recently updated on September 20, 2020. Joint ROD,
BOEM_0076799 at -6804.
On March 3, 2021, BOEM published a notice in the
Federal Register stating it was resuming preparation
of a final environmental impact statement related to the
COP. Joint ROD, BOEM_0076799 at -6804. On March 12,
2021, BOEM posted the Final EIS, which consists of 1,600
pages in four volumes assessing the environmental, social,
economic, historic, and cultural impacts of the Vineyard
Wind Project, from construction to decommissioning, on
BOEM’s website and issued a notice of availability in the
Federal Register. 86 Fed. Reg. 14,153 (Mar. 12, 2021),
41a
Appendix B
BOEM_0071036; see also Final EIS, BOEM_006843470061.
2.
Biological Opinion
On December 6, 2018, BOEM sent a request to
NMFS to conduct a biological consultation pursuant to
Section 7 of the ESA. BOEM ESA Consultation Request,
BOEM_0034533-4688. BOEM made the request in its
capacity as the lead Federal agency in the Section 7
consultation process for the Vineyard Wind Project on
behalf of itself, the Army Corps of Engineers (“Corps”),
and NMFS Office of Protected Resources (“NMFS/
OPR”). 2021 Biological Opinion, BOEM_0077276 at -7280.
On May 1, 2019, NMFS’s Greater Atlantic Regional Office
(“NMFS/GAR”) agreed to initiate formal consultation to
consider the effects of the proposed actions on ESA-listed
whales, including the North Atlantic right whale, sea
turtles, fish, and the critical habitat for various species
that may be present in the proposed action area. NMFS
Initiation Letter, NMFS 16008. On September 11, 2020,
NMFS/GAR issued a biological opinion (the “2020 BiOp”)
pursuant to its obligations under Section 7(a)(2) of the ESA
on behalf of itself, BOEM, NMFS/OPR, and the Corps.
Sept. 11, 2020 NMFS BiOp Transmittal Letter to BOEM,
NMFS 16027-28; 2020 BiOp, NMFS 16029-354. The 2020
BiOp concluded that the “proposed action may adversely
affect but is not likely to jeopardize the continued
existence” of the North Atlantic right whales, among other
species. Sept. 11, 2020 NMFS BiOp Transmittal Letter,
NMFS 16029; 2020 BiOp, NMFS 16029 at -6317.
42a
Appendix B
On May 7, 2021, BOEM requested that NMFS/
GAR reinitiate its biological consultation. 2021 BiOp,
BOEM_0077276 at -7281; May 7, 2021 Letter from BOEM
to NMFS/GAR, BOEM_0076721. On May 27, 2021, NMFS/
GAR advised BOEM that it agreed that consultation must
be reinitiated and that it anticipated such consultation
would result in a new BiOp that would replace the 2020
BiOp. 2021 BiOp, BOEM_0077276 at -7281. The biological
consultation was reinitiated to consider (i) the effects
of monitoring surveys identified in the Joint ROD by
BOEM, at NMFS’s recommendation, as conditions of COP
approval, which were not considered in the 2020 BiOp,
and (ii) new information concerning the status of the right
whale. 2021 BiOp Transmittal Mem., NMFS 017683 at
-7683-84; BOEM Mem. to Record, BOEM_077788-89.
On October 18, 2021, NMFS/GA R issued the
reinitiated BiOp, and on November 1, 2021, NMFS reissued
the reinitiated BiOp (“2021 BiOp”) with corrections after
typos and other non-substantive errors were identified and
corrected. See Oct. 18, 2021 NMFS Transmittal Letter to
BOEM, NMFS 16668; Nov. 1, 2021 Transmittal Letter,
NMFS 17172; 2021 BiOp, BOEM_0077276-7779. The 2021
BiOp supersedes the 2020 BiOp. Nov. 1, 2021 Transmittal
Letter, NMFS 17172 at -74; Oct. 18, 2021 NMFS
Transmittal Letter to BOEM, NMFS 16668 (“this Opinion
replaces the Opinion we issued to you on September 20,
202[0]”). In formulating its biological opinions, NMFS/
GAR considered documents prepared by BOEM, including
each iteration of the EIS, Vineyard Wind’s proposed COP
and updates, BOEM’s COP Approval, and the Incidental
Harassment Authorization issued by NMFS/OPR,
43a
Appendix B
discussed further below. 2021 BiOp, BOEM_0077276 at
-7285-86, -88, -63-64. The 2021 BiOp analyzed the direct
and indirect effects of the approved COP, the modifications
proposed by BOEM, and those proposed by NMFS/
OPR in the IHA. Id. NMFS/GAR also updated the 2021
BiOp to reflect the best scientific information available
concerning right whales and explain whether any of
the new information affected the analysis. Oct. 15, 2021
Transmittal Mem., NMFS 17683 at -86-87.
Like the 2020 BiOp, the 2021 BiOp concludes the
proposed action is not likely to jeopardize the continued
existence of the right whales. 2021 BiOp, BOEM_0077276
at -7657. Also like the 2020 BiOp, the 2021 BiOp included
an incidental take statement (“ITS”) and imposed
reasonable and prudent measures and their implementing
terms and conditions to minimize and document the take
of ESA-listed species. 2021 BiOp, BOEM_0077276 at
-7657-78; 2020 BiOp, NMFS 16029-354. The 2021 BiOp
reflects that NMFS anticipates the incidental take of up
to 20 right whales by Level B harassment, harassment
that has the potential to “disturb a marine mammal
. . . in the wild by causing disruption of behavioral
patterns,” due to exposure to pile driving noise based
on the “maximum impact scenario” for the Project. 2021
BiOp BOEM_0077660-62, -7299. The maximum impact
scenario is defined as 90 monopiles being placed in the
Wind Development Area, with 12 jackets, at a rate of
one pile being driven per day, assuming only 6 decibels
of attenuation, or reduction of sound through mitigation
measures. 2021 BiOp, BOEM_0077276 at -7660-61. The
2021 BiOp notes that Vineyard Wind may install fewer
44a
Appendix B
turbines and models the corresponding decrease in likely
harassment to right whales and other animals. Id. The
2021 BiOp concludes that “neither Vineyard Wind nor
NMFS expect[s] serious injury or mortality to result
from this activity, and therefore, NMFS has determined
that an IHA is appropriate.” Id. at -7284; see also id. at
-7658 (reflecting in all modeled scenarios that no injury
is anticipated with respect to right whales). BOEM and
NMFS/OPR each adopted the 2021 BiOp. 2021 BiOp,
BOEM_0077276 at -7788; NMFS 3557. The 2021 BiOp
concluded, based on all scenarios modeled with 12 decibels
sound attenuation, that no right whales would be subject
to Level A harassment, which is defined under the Marine
Mammal Protection Act (“MMPA”) as “harassment” that
has the potential to injure a marine mammal. 2021 BiOp,
BOEM_0077276 at -7299-300. 2 The 2021 BiOp includes an
analysis of the effect of Project vessels, estimating that
the Project will increase overall vessel traffic by 4.8%
during the construction phase and by 1.6% during the
operational phase of the Project. Id. at -7508. The 2021
BiOp concludes, based on traffic, combined with mitigation
measures and other requirements for project vessels, that
it is “extremely unlikely that a project vessel will collide
with a whale.” Id. at -7527.
On December 1, 2021, NMFS filed a Memorandum
for the Record regarding the issuance of the 2021 BiOp,
2. Vineyard Wind did not seek authorization for Level A
harassment because it anticipated that that such harassment “will
be avoided through enhanced mitigation and monitoring measures
proposed specifically for North Atlantic right whales.” 2021 BiOp,
BOEM_0077276 at -7451.
45a
Appendix B
reflecting that the NMFS Permits and Conservation
Division (PR1) was adopting the 2021 BiOp. NMFS
Mem. to Record, NMFS 3557. On January 20, 2022,
BOEM determined, pursuant to 50 C.F.R. § 402.15(a),
that “because the activities authorized under BOEM’s
COP approval—including the monitoring surveys—are
subject to the terms and conditions and reasonable and
prudent measures found in the 2021 BiOp, no further
action is required in order for Vineyard Wind to proceed
with construction and operation of the Project.” BOEM
Information Mem. to Record, BOEM_077788-89.
D.
Other Agency Review3
1.
Incidental Harassment Authorization
Meanwhile, on September 7, 2018, Vineyard Wind
submitted a request under the MMPA to NMFS/OPR
for an Incidental Harassment Authorization, seeking
authorization of the likely incidental taking by harassment
that may occur from impact pile driving in connection
with the Project. Draft IHA Application, NMFS 1421814550; Transmittal Email, NMFS 14451. In October
2018, and then January 2019, Vineyard Wind submitted
revised versions of its IHA application to NMFS/OPR.
3. The Vineyard Wind Project was also subject to review by
other agencies whose actions were not challenged by Plaintiffs here
or in the Related Actions. See Final EIS Vol. II, BOEM_0068786
at -9170-78 (discussing review under several other statutes,
including the Coastal Zone Management Act, the National
Historic Preservation Act, and the Magnuson-Stevens Fishery
Conservation and Management Act).
46a
Appendix B
Transmittal Emails, NMFS 14457, NMFS 14581; January
2019 Draft IHA Application, NMFS 14737-4984. The
Vineyard Wind IHA Application was deemed complete
on February 15, 2019. 84 Fed. Reg. 18,346 (April 30,
2019), NMFS 3392. Notice inviting public comment on
the proposed IHA was published in the Federal Register
74 days later, on April 30, 2019. Id. The public comment
period closed on May 30, 2019. Id.
Approximately two years later, on May 21, 2021,
NMFS issued the IHA to Vineyard Wind. May 21, 2021
Letter Issuing IHA, NMFS 3514; IHA, NMFS 34893509. On June 25, 2021, NMFS/OPR issued notice of its
approval of an IHA under the MMPA, 16 U.S.C. §§ 1361,
et seq., NMFS 3415; see also 86 Fed. Reg. 33,810 (June
25, 2021) (“Notice of Issuance of IHA”), NMFS 3515-3556.
The notice responded to the public comments NMFS/OPR
received, explained the basis for the agency’s decision,
and described the mitigation, monitoring, and reporting
requirements that were imposed by the IHA. Notice of
Issuance of IHA, NMFS 3515-3556.
The IHA is valid from May 1, 2023, through April 30,
2024. IHA, NMFS 3489. The IHA authorizes a maximum
take by Level B harassment of 20 incidents to right whales.
Notice of Issuance of IHA, NMFS 3515 at -3551. The
Notice of Issuance defines Level B Harassment as “the
potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering.”
Notice of Issuance of IHA, NMFS 3515 at -3532; see also
50 C.F.R. § 216.3.
47a
Appendix B
2.
Clean Air Act Permits
On August 17, 2018, Vineyard Wind applied to the
U.S. Environmental Protection Agency (“EPA”) for a
permit under the Clean Air Act concerning construction
of a wind farm. 2021 BiOp, BOEM_0077276 at -7282-83.
On April 19, 2019, Vineyard Wind submitted a subsequent
application for an operating permit in accordance with 310
C.M.R. 7.00. Id. On June 28, 2019, the EPA issued a draft
permit for public comment. Id. On May 19, 2021, the EPA
issued a permit to Vineyard Wind. Id.
3.
Rivers and Harbors & Clean Water Act
Permits
On December 26, 2018, the Corps issued a public notice
in the Federal Register regarding proposed permits
under the Rivers and Harbors Act and Section 404 of the
Clean Water Act, to permit Vineyard Wind to construct,
maintain, and eventually decommission an 800 megawatt
wind energy facility, two electronic service platforms,
scour protection around the bases of the wind turbine
generators and electronic service platforms, connection
between the turbines and the service platforms, and two
export cables with scour protection within a single 23.3
mile long corridor. Joint ROD, BOEM_ 0076799 at -6803,
-6807. The public comment period ran from December 26,
2018, to January 18, 2019. Joint ROD, BOEM_0076799 at
-6828. The Corps did not receive any comments from the
public during or after the public comment period. Id. The
Corps issued a permit, with special conditions, to Vineyard
Wind on August 9, 2021. 2021 BiOp, BOEM_0077276 at
-7282.
48a
Appendix B
E. The Approved Vineyard Wind Project
On May 10, 2021, BOEM, NMFS, and Corps issued
a Joint ROD adopting the Final EIS. Joint ROD,
BOEM_0076799-898. The Joint ROD consolidated the
records of decision by each respective agency, specifically,
BOEM’s action to approve the COP under OCSLA, the
Corps’ issuance of permits under the Clean Water Act and
Rivers and Harbors Act, and NMFS/OPR’s issuance of an
IHA under the MMPA. Joint ROD, BOEM_0076799-898.
The Joint ROD reflects that BOEM’s approval of the COP
would be subject to mitigation and monitoring measures
outlined in the Final EIS and any additional technical,
navigational, and safety conditions imposed by BOEM.
Joint ROD, BOEM_0076799 at -6820-21, -6827.
On July 15, 2021, BOEM issued final approval of
Vineyard Wind’s COP under OCSLA. July 15, 2021 VWI
COP Project Easement and Approval Letter (“COP
Approval Letter”), BOEM_0077150-265. The Project,
as approved, will involve 84 or fewer wind turbines to be
installed in 100 of the locations proposed by Vineyard
Wind in the Wind Development Area, in an east-to-west
orientation, with a minimum spacing of 1 nautical mile
each. Joint ROD, BOEM_0076799 at -6821. The Project
is located approximately 14 nautical miles south of
Nantucket Island and Martha’s Vineyard at its nearest
point. Final EIS Vol. II, BOEM_0068786 at -8863. As
part of construction of the Project, project-related vessels
will travel primarily from New Bedford, Massachusetts,
approximately fifty miles from the WDA, although some
vessel trips will originate in Canadian ports. 2021 BiOp,
BOEM_0077276 at -7294.
49a
Appendix B
BOEM’s final approval is subject to numerous
terms and conditions, including compliance with all
“statutes, regulations, and permits and authorizations
issued by Federal and state agencies for the [P]roject.”
COP Approval Letter, BOEM 077150 at -152. The COP
Approval Letter also noted that all activities authorized
thereunder by BOEM “will be subject to any terms and
conditions and reasonable and prudent measures resulting
from a BOEM-reinitiated consultation for the Project’s
BiOp.” COP Approval Letter, BOEM 077150 at -7152. The
IHA set forth a number of minimization and monitoring
measures, which were incorporated into the conditions of
the COP Approval and set forth in the 2021 BiOp. IHA,
NMFS 3489-3509. Numerous other measures were laid
out in the Joint ROD pertaining to right whales and
other ESA-listed animals. See Joint ROD, Appendix A,
BOEM_0076852-897. The mitigation measures include:
1. Seasonal restriction on pile driving. Pile
driving is not permitted from January 1 through
April 30 to avoid the time of year with highest
densities of right whales in the Project Area. Pile
driving is not permitted in December, except in
the event of unanticipated delays, and will require
enhanced protection measures and approval by
BOEM. 2021 BiOp, BOEM_0077276 at -7451-52;
IHA, NMFS 3489 at -3490.
2. A “soft start” pile driving procedure. Vineyard
Wind will begin pile driving activities with three
rounds of three impact hammer strikes at a
reduced energy, each followed by a one-minute
50a
Appendix B
waiting period. Vineyard Wind will use this “soft
start” approach for each pile to be driven at the
beginning of a day’s pile driving activities, and at
any point where pile driving has ceased for thirty
minutes or longer. 2021 BiOp, BOEM_0077276
at -7458. This “soft start” procedure is designed
to “provide a warning to any marine mammals”
and the opportunity to disperse from the area
prior to higher intensity pile driving, to reduce
the change of Level A or Level B harassment
of right whales. 2021 BiOp, BOEM_0077276 at
-7458.
Although NMFS expects soft-start procedures to
reduce the effects of pile driving on right whales,
NMFS was unable to modify the estimated taken
numbers to account for such benefit because
NMFS could not predict the extent to which
soft start would reduce exposure. 2021 BiOp,
BOEM_0077276 at -7458.
3. The use of protected species observers. Vineyard
Wind must employ qualified, trained protected
species observers (“PSOs”) to conduct monitoring
for marine mammals during pile driving activity.
These individuals must be approved by NMFS
and are subject to certain conditions, including
that they must be independent observers, rather
than construction personnel. IHA, NMFS
3489 at -3499-3500. At least two PSOs must be
stationed on the pile driving vessel at all times
sixty minutes prior to, during, and thirty minutes
after pile driving. IHA, NMFS 3489 at -3490.
51a
Appendix B
4. Pa ssive Acoustic Monit or ing & O ther
Reporting. Passive Acoustic Monitoring (“PAM”)
will be used “record ambient noise and marine
mammal vocalizations in the [L]ease [A]rea
before, during, and after [construction] to monitor
project impacts relating to vessel noise, pile
driving noise, [wind turbine] operational noise,
and to document whale detections in the WDA.”
2021 BiOp, BOEM_0077276 at -7298. PAMgenerated noise data must be interpreted by an
expert trained to discern the species of whale
making sounds detected. Id.
5. The establishment of pile driving clearance
zones. Vineyard Wind PSOs must establish
clearance zones for right whales between sixty
minutes prior pile driving activities and thirty
minutes after completion of pile driving activities.
The clearance zones range depending on the
time of year from 2-10 km for visual and 5-10 km
for PAM. Zones are the smallest from June to
December 31, when the BiOp concludes there is a
lower probability of right whales being present in
the pile driving area. 2021 BiOp, BOEM_0077276
at -7319.
Vineyard Wind vessels must also use all
other available sources of information on right
whale presence, including the Right Whale
Sightings Advisory System, WhaleAlert app,
and monitoring of Coast Guard channels to plan
vessel routes. IHA, NMFS 3489 at -3496.
52a
Appendix B
6. Vessel Speed Restrictions. Vessels must
comply with the NOAA Ship Strike Rules’ speed
restrictions, that restrict speed to 10 knots in
certain restricted zones. IHA, NMFS 3489 at
-3497; see also 2021 BiOp, BOEM_0077276 at
-7520. All vessels travelling over 10 knots must
have a dedicated visual observer on duty at all
times, such as a PSO or crew member. IHA,
NMFS 3489 at -3496. Where a crew transfer
vessel is not subject to the 10-knot speed limit, it
must employ an additional PSO or other enhanced
detection method to monitor for right whales, in
addition to PAM. Id. at -3497.
7. Heightened Measures in Dynamic Management
Areas and Slow Zones. Dynamic Management
Areas (“DMA”), as defined by the 2008 NOAA
Ship Strike Rules (73 Fed. Reg. 60,173), are
temporary protection zones designed to reduce
lethal right whale strikes and are triggered when
three or more whales are sighted within 2-3 miles
of each other outside of the seasonal protection
zones, See 2021 BiOp, BOEM_0077276 at -7675.
NMFS adopted an additional protective measure,
referred to as Right Whale Slow Zones, based on
acoustical detection of a vocalizing right whale.
When a right whale is detected acoustically,
notifications of a “Slow Zone,” covering a
protective circle with a radius of 20 nautical
miles from any point of detection, are triggered.
Id.; see also NOAA Fisheries, Help Endangered
Whales: Slow Down in Slow Zones (Dec. 23,
53a
Appendix B
2021) available at https://www.fisheries.noaa.
gov/feature-story/help-endangered-whales-slowdown-slow-zones . In instances where a DMA or
Slow Zone has been triggered, NMFS requires
that Vineyard Wind use an increased number
of PSOs, and establish an extended exclusion
zone with PAM, in addition to other restrictions
established by the rules pertaining to DMAs and
Slow Zones. 2021 BiOp, BOEM_0077276 at -7675.
As the 2021 BiOp acknowledges, numerous mitigation
measures are designed not only to protect right whales
from harassment, but also to protect other species. For
instance, Vineyard Wind is required to implement PSOs
for several species of sea turtles, and the soft-start
pile driving procedures are designed to disperse any
undetected sea turtles, right whales, and other marine
species from the Area. See 2021 BiOp, BOEM_0077276
at -7480-82, -7458.
II. Factual Record as to Plaintiffs’ Standing
A.
Plaintiff Vallorie Oliver
Plaintiff Vallorie Oliver is a lifelong resident of
Nantucket Island. Joint Statement of Undisputed Facts
(“Joint SOF”) ¶ 3 [Doc. No. 118]; Decl. of Vallorie Oliver in
Supp. of Pls. Mot. for Summ. J. (“Oliver Decl.”) ¶ 3 [Doc.
No. 88-2]. Oliver founded Plaintiff ACK RATs in 2018 and
serves as its president. Joint SOF ¶ 4 [Doc. No. 118]; Oliver
Decl. ¶ 2 [Doc. No. 88-2]. Oliver enjoys the opportunity to
observe marine animals in their natural habitat, Oliver
54a
Appendix B
Decl. ¶ 3 [Doc. No. 88-2], and has seen right whales in the
waters around Nantucket, including “water potentially
affected by the proposed Vineyard Wind [P]roject,”
Supplemental Declaration of Vallorie Oliver in Support
of Plaintiffs’ Motion for Summary Judgment and in Opp.
to Cross-Motions for Summary Judgment (“Oliver Suppl.
Decl.”) ¶ 4 [Doc. No. 108].4 Oliver has “concrete” plans
to observe right whales in the waters around Nantucket
in the future, id., but has provided no details regarding
those plans. 5 Oliver states that, were any harm to come
to right whales because of the Project, she would feel she
has failed in her duty to protect them. Oliver Decl. ¶ 3
[Doc. No. 88-2]. Oliver states further that she would suffer
“ecological grief ” were she to hear about the loss of even
4. Defendants and Vineyard Wind challenge this statement as
“vague and not substantiated with evidence of Ms. Oliver traveling
to the Project Area.” Fed. Defs. Resp. to Pls. Suppl. Separate
Statement of Undisputed Facts ¶ 3 [Doc. No. 113]; Vineyard Wind
Resp. to Pls. Suppl. Separate Statement of Undisputed Facts ¶ 3
[Doc. No. 116]. However, where Oliver’s Supplemental Declaration
states, under oath, that she has direct knowledge of the facts set
forth therein, the court takes her unrebutted statements of fact
as true for purposes of summary judgment.
5. Defendants and Vineyard Wind dispute Oliver’s statement
“as conclusory and unsupported by credible evidence” where she
has not identified any such plans. See Fed. Defs. Resp. to Pls.
Suppl. Separate Statement of Undisputed Facts ¶ 4 [Doc. No.
113]; Vineyard Wind Resp. to Pls. Suppl. Separate Statement
of Undisputed Facts ¶ 4 [Doc. No. 116]. Again, however, where
Oliver’s Supplemental Declaration states, under oath, that she
has direct knowledge of the facts set forth therein, the court
takes her unrebutted statements of fact as true for purposes of
summary judgment.
55a
Appendix B
one right whale to the Project. Oliver Suppl. Decl. ¶ 8 [Doc.
No. 108]. Oliver states that she would similarly experience
“heartsickness” if the Project’s pile driving activities were
to cause hearing damage to any right whales or force the
right whales outside of the construction zone and towards
other threats. Oliver Suppl. Decl. ¶ 9 [Doc. No. 108].
Oliver states that her respiratory health will be
affected because the Project’s emissions will affect the
entire southeastern Massachusetts region, including
Nantucket, where Oliver lives, as well as Barnstable and
New Bedford, Massachusetts, where Oliver frequently
visits. Oliver Suppl. Decl. ¶ 12 [Doc. No. 108]. Oliver states
that she will also be affected by the increase in greenhouse
gas emissions caused by the Project because they may
exacerbate climate change as experienced on and near
Nantucket. Oliver Suppl. Decl. ¶ 13 [Doc. No. 108].
B. Plaintiff Nantucket Residents Against
Turbines (ACK RATs)
ACK RATs is a non-profit organization incorporated in
Massachusetts. Joint SOF ¶ 1 [Doc. No. 118]. ACK RATs’
members include Oliver and non-party Amy DiSibio.
DiSibio, joined ACK RATs in 2021 and serves on the
Organization’s board of directors. Joint SOF ¶ 5 [Doc.
No. 118]; Decl. of Amy DiSibio in Supp. of Pls. Mot. for
Summ. J. (“DiSibio Decl.”) ¶ 3 [Doc. No 88-3]. DiSibio
owns a home on Nantucket Island. DiSibio Decl. ¶ 2
[Doc. No. 88-3]. DiSibio and her family have been visiting
Nantucket for more than thirty years. Id. DiSibio enjoys
56a
Appendix B
the opportunities to observe marine mammals in their
natural habitat surrounding Nantucket. Id. ¶ 4. DiSibio
and her family enjoy whale watching off Nantucket. Id.
DiSibio states that she feels a responsibility to protect
the right whale from damage that could be caused by the
Vineyard Wind Project. Id.
Plaintiffs have not identified any members of ACK
RATs other than Oliver and DiSibio and has not provided
any other information about its members. Joint SOF ¶ 10
[Doc. No. 118].
III. Procedural Background
Plaintiffs ACK RATs and Vallorie Oliver notified
Defendants of their intent to sue on May 27, 2021, and
instituted this action on August 27, 2021. Complaint
[Doc. No. 1]. On November 27, 2021, Plaintiffs submitted
the revised 60-Day Letter to the Defendants (“60-Day
Letter”). [Doc. No. 96-3]. Two days later, Plaintiffs
submitted a supplement to the 60-Day Letter regarding
the 2021 BiOp’s purported failure to identify or describe
any existing “take” authorizations for numerous listed
species in the section discussing the Environmental
Baseline for the Project. [Doc. No. 96-4].
On January 7, 2022, the court granted Vineyard
Wind’s motion to intervene. Jan. 7, 2022 Mem. and Order
[Doc. No. 54]; see also Vineyard Wind Mot. to Intervene
[Doc. No. 11].
On February 10, 2022, Plaintiffs filed an amended
complaint. First Amended Complaint [Doc. No. 59].
57a
Appendix B
Plaintiffs claim that NMFS acted arbitrarily, capriciously,
and unlawfully in issuing the 2021 BiOp in violation of
ESA Section (7)(a)(2) by failing to adequately consider the
Project’s impact on North Atlantic right whales, including
by failing to engage in the “best available” science with
respect to right whales as required by the ESA. First
Amended Complaint ¶¶ 71-73 [Doc. No. 59]. Plaintiffs
further contend that both NMFS and BOEM violated and
continue to violate Section 7(a)(2) of the ESA by failing
to ensure through consultation that BOEM’s approval of
impacts of the Project will not jeopardize the right whale.
First Amended Complaint ¶¶ 75-76 [Doc. No. 59]. Finally,
Plaintiffs claim that BOEM violated NEPA by failing
to take the requisite “hard look” at the environmental
consequences of the Project, both as to the right whales
and as to the air quality and emissions impacts, instead
issuing a Final EIS that reflected many of the same
claimed procedural and substantive defects as the 2021
BiOp. First Amended Complaint ¶¶ 7, 67-69 [Doc. No. 59].6
Defendants certified the Administrative Record on
April 11, 2022, Fed. Defendants’ Notice of Filing Certified
Indices to Administrative Records [Doc. No. 71], and
filed Addenda on May 19, 2022, June 13, 2022, and July 1,
2022, Fed. Defendants’ Notices of Filing Certified Index
6. Plaintiffs have waived several additional claims by failing
to raise them in their summary judgment papers, including that
Defendants violated NEPA by failing to consider the cultural and
aesthetic impacts of the Project and any ESA or NEPA claims
as to animals other than right whales. Compare First Amended
Complaint ¶¶ 7, 67-68 [Doc. No. 59], with Pls. Mem. in Support
of Summary Judgment (“Pls. Mem.”) at 6-7, 43-49 [Doc. No. 89].
58a
Appendix B
to NMFS Administrative Record Addenda [Doc. Nos.
75, 76, 78, 83]. The parties’ pending cross-motions and
consolidated briefing followed. [Docs Nos. 88-89, 92, 9596, 98-102, 105-109, 112-118, 127].
IV. 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, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (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, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986). This burden can be satisfied
in two ways: (1) by submitting affirmative evidence that
negates an essential element of the non-moving party’s
claim or (2) by demonstrating that the non-moving party
failed to establish an essential element of its claim. Id. at
331. 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 255-56.
59a
Appendix B
The non-moving party cannot oppose a properly
supported summary judgment motion by “rest[ing] on
mere allegations or denials of [the] pleadings.” Id. at 256.
Disputes over facts “that are irrelevant or unnecessary”
will not preclude summary judgment. Anderson, 477
U.S. at 248. When 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 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”).
V. Standing
The court begins with a threshold jurisdictional issue.
Defendants and Vineyard Wind contend that Plaintiffs
have failed to establish that they will suffer a concrete
60a
Appendix B
injury and thus lack standing. Plaintiffs contend that
declarations provided by Plaintiff Vallorie Oliver, [Doc.
Nos. 88-2 108], and non-party Amy DiSibio [Doc. No. 88-3]
are sufficient to establish standing on summary judgment.
A.
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, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(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
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136
S. Ct. 1540, 194 L. Ed. 2d 635 (2016), as revised (May 24,
2016) (quoting Defs. of Wildlife, 504 U.S. at 560-61). “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 Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006)).
To establish the first element of standing, an injury-infact, 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. “The particularization
element of the injury-in-fact inquiry ref lects the
commonsense notion that the party asserting standing
must not only allege injurious conduct attributable to the
61a
Appendix B
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).
Standing also requires causation and redressability,
which “‘overlap as two sides of a causation coin.’”
Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1, 428
U.S. App. D.C. 243 (D.C. Cir. 2017) (quoting Dynalantic
Corp. v. Dep’t of Def., 115 F.3d 1012, 1017, 325 U.S. App.
D.C. 109 (D.C. Cir. 1997)). “[I]f a government action causes
an injury, enjoining the action usually will redress that
injury.” Id.7
An association cannot establish standing to sue on
behalf of its members unless “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).
An association must also establish that the interests at
stake are germane to the organization’s purpose, and
that “neither the claim asserted nor the relief requested
requires individual members’ participation in the lawsuit.”
Friends of the Earth, Inc. v. Laidlaw Environ. Servs.
(TOC), Inc., 528 U.S. 167, 169, 120 S. Ct. 693, 145 L. Ed. 2d
610 (2000).
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 required at the successive stages
7. Neither Defendants nor Vineyard Wind challenge
causation or redressability on summary judgment.
62a
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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, 99 S. Ct. 1601, 60 L. Ed. 2d 66
(1979)).
B. Endangered Species Act Claim
Plaintiffs point to several interests they contend are
sufficient to establish injury-in-fact for standing purposes
under the ESA. First, Plaintiffs contend that both Oliver
and DiSibio have deep connections to the right whales
and their preservation by way of their long-established
ties to Nantucket. Pls. Mem. of Points and Authorities
in Opp. to Cross-Motions; Pls. Reply in Supp. of Mot.
for Summ. J. (“Pls. Opp.”) 11-13 [Doc. No. 105] (citing
Oliver and DiSibio Decls.). Second, Plaintiffs point to the
degrees of emotional distress each woman attests she
would experience if any right whales were harmed or
killed as a result of the Project. Pls. Opp. 12, 14-16 [Doc.
No. 105]; Oliver Decl. ¶¶ 2-3 [Doc. No. 88-2]; Oliver Suppl.
Decl. ¶¶ 8-9 [Doc. No. 108]; DiSibio Decl. ¶ 4 [Doc. No.
88-3]. Oliver contends that she has seen right whales in
the past and that she has “concrete plans” to view them in
the future. Oliver Suppl. Decl. ¶ 9 [Doc. No. 108]. DiSibio
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Appendix B
states recreational and aesthetic interest in the right
whale. See DiSibio Decl. ¶ 4 [Doc. No. 88-3] (“My family
and I enjoy whale watching off Nantucket”). Defendants,
joined by Vineyard Wind, contend that Oliver and DiSibio
do not provide specific facts to reflect that either has the
“requisite environmental or aesthetic interest in right
whales” because neither offers the kind of “concrete plans”
required under Defenders of Wildlife, 504 U.S. at 565.
The citizen-suit provision of the ESA grants “any
person” the authority to commence a civil suit in to enforce
a violation of any provision of the ESA. 16 U.S.C. § 1540 (g)
(1). This “authorization of remarkable breadth” abrogates
the traditional prudential limitation that “a plaintiff’s
grievance must arguably fall within the zone of interests
protected or regulated by the statutory provision or
constitutional guarantee invoked in the suit.” Bennett v.
Spear, 520 U.S. 154, 162-164, 117 S. Ct. 1154, 137 L. Ed. 2d
281 (1997). Nonetheless, Article III of the Constitution
requires that a party filing suit under the ESA state not
only an injury-in-fact but that “the party seeking review
be himself among the injured.” Sierra Club v. Morton,
405 U.S. 727, 735, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972).
Plaintiffs must present more than “‘general averments’
and ‘conclusory allegations,’” Friends of the Earth, Inc.,
528 U.S. at 168-69 (quoting Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)),
or “‘some day intentions’ to visit endangered species
halfway around the world,” Id. (quoting Defs. of Wildlife,
504 U.S. at 564).
64a
Appendix B
1.
Plaintiff Vallorie Oliver’s Claimed Injuriesin-Fact
Certain of Oliver’s claimed injuries are more concrete
than others. First, Oliver’s strong ties to Nantucket and
the ecosystem are not, in and of themselves, sufficient.
Proximity does not equate to injury. See Nat’l Wildlife
Fed’n, 497 U.S. at 887 (holding that an alleged injury
was insufficient to establish standing where the plaintiffs
did not use land in the area affected by the challenged
activity but instead only roughly “in the vicinity” of the
affected land).
Likewise, Oliver’s anticipated ecological grief is
insufficient. See Humane Soc. of United States v. Babbitt,
46 F.3d 93, 98-99, 310 U.S. App. D.C. 228 (D.C. Cir.
1995) (collecting cases). “[G]eneral emotional harm, no
matter how deeply felt, cannot suffice for injury-in-fact
for standing purposes.” Id.; see also Strahan v. Sec’y,
Mass. Exec. Office of Energy & Envtl. Affairs, 2021 U.S.
Dist. LEXIS 259688, 2021 WL 9038570, at *8 (D. Mass.
Nov. 30, 2021) (“injury-in-fact may not be established by
[Plaintiffs’] ‘sincere and passionate interest in the wellbeing of the whales alone.”). Even if emotional distress
were sufficient, Oliver’s statements are too speculative.
Oliver states that if right whales are killed or injured
through vessel-related strikes or other means related to
the Project the news of this loss would be “psychologically
devastating” and she would suffer “ecological grief.” Oliver
Suppl. Decl. ¶¶ 8-9 [Doc. No. 108]. Defendants rightly
describe this as a “contingent future mental health injury”
for which she offers no support. See Fed. Defs. Resp. to
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Appendix B
Pls. Suppl. Separate Statement of Undisputed Facts ¶ 9
[Doc. No. 113]. The risk of this injury is dependent on the
occurrence of a future event—the death or serious injury
of North Atlantic right whales because of the Project—and
is contradicted by evidence in the Administrative Record
that the Project is unlikely to cause the death of any right
whale. See, e.g., 2021 BiOp, BOEM_0077276 at -7657.
Oliver’s final stated interest, that she has seen right
whales in the past and has “concrete plans” to observe
them in the future, is marginally sufficient. Defendants
and Vineyard Wind contend that more is required under
Defenders of Wildlife. Fed. Defs. Reply 3-5 [Doc. No. 114];
Vineyard Wind Reply in Support of Its Mot. for Summ.
J. (“Vineyard Wind Reply”) 2-3 [Doc. No. 115]. While
Defendants and Vineyard Wind are correct that Defenders
of Wildlife required more than “‘some day’ intentions,”
they overlook the context and limits of that holding.
In Defenders of Wildlife, the plaintiff organization
challenged the decision by two agencies to limit ESA
Section 7(a)(2) consultation to actions taken in the
United States or on the high seas, contending that their
members would be harmed by the risk to endangered
and threatened species abroad. 504 U.S. at 558-559.
To support standing, two members put forth affidavits
professing their intent to return to foreign countries to
observe threatened species. Id. One member put forth an
affidavit stating she “intend[s] to return to Sri Lanka,”
but when subsequently deposed, she stated that she had
no current plans to return, adding that “‘[t]here is a civil
war going on right now. I don’t know. Not next year, I
66a
Appendix B
will say. In the future.’” Id. at 563-4 (quoting deposition
testimony). It is in this context that the Court rejected
“affiants’ profession of an intent to return to places they
had visited before—where they will presumably, this
time, be deprived of the opportunity to observe animals
of the endangered species,” holding that “[s]uch ‘some day’
intentions” are “simply not enough.” Id. at 564.
Unlike Defenders of Wildlife, there are no speculative
statements about trips to far-flung destinations here.
Instead, it is undisputed that Oliver lives on Nantucket
Island, in the vicinity of coastal waters that right whales
frequent. See Joint SOF ¶ 3 [Doc. No. 118]. It is also
undisputed that Oliver has seen right whales in the past.
See Fed. Defs. Resp. to Pls. Suppl. Separate Statement
of Undisputed Facts ¶ 4 [Doc. No. 113]; Vineyard Wind
Resp. to Pls. Suppl. Separate Statement of Undisputed
Facts ¶ 4 [Doc. No. 116]. And where Defendants did not
offer deposition testimony or any other evidence to counter
Oliver’s assertion, the court finds Oliver’s unrebutted
statement that she has “concrete plans to observe right
whales in the waters around Nantucket in the future,”
Oliver Suppl. Decl. ¶ 4 [Doc. No. 108], a sufficiently
“concrete and particularized” legally protected interest
to establish an injury-in-fact.
Oliver has thus put forth sufficient facts to establish
injury for purposes of summary judgment. No party
challenges causation or redressability. Therefore,
Defendants and Vineyard Wind’s standing challenges to
Oliver’s ESA claims fail.
67a
Appendix B
2.
Plaintiff ACK RATs
Because Oliver has put forth sufficient facts to
establish injury for purposes of summary judgment and
was a member of ACK RATs at the time the suit was filed,
ACK RATs has also established such injury for purposes
of summary judgment. See Friends of the Earth, Inc.,
528 U.S. at 168-69. It is undisputed that the interests
at stake are germane to ACK RATs’ purpose. Friends
of the Earth, Inc., 528 U.S. at 168-69. Moreover, neither
the claims asserted, nor the relief requested require the
participation of individual members. Id. Accordingly,
Defendants’ and Vineyard Wind’s standing challenge on
summary judgment as to ACK RATs’ ESA claims fail. 8
C.
National Environmental Policy Act Claims
Plaintiffs assert that they have also established
Plaintiffs’ injury-in-fact as to the NEPA claims. Pls. Mem.
and Points of Authorities in Supp. of Mot. for Summ. J.
(“Pls. Mem.”) 12 [Doc. No. 89]; Pls. Opp. 17-21 [Doc. No.
105]. Defendants maintain that Plaintiffs cannot establish
a concrete injury, let alone a procedural injury, and thus
8. The court’s finding does not rely on Amy DiSibio’s
Declaration where DiSibio did not establish that she was a member
of ACK RATs on the date this action was initiated. As a result, her
statements do not change the standing analysis. See LA Alliance
for Human Rights v. County of Los Angeles, 14 F.4th 947, 959 n.9
(9th Cir. 2021) (rejecting Plaintiffs’ attempt to remedy a standing
defect where it had not alleged that supplemental declarations
were offered by members who had joined the plaintiff organization
prior to date the suit was filed).
68a
Appendix B
lack standing for any of their claims. See Fed. Defs. Reply
2-5 [Doc. No. 114]. Vineyard Wind argues further that
Plaintiffs’ evidence as to standing for the NEPA claims
fails where Plaintiffs offered no expert testimony or other
similar supporting evidence as to air quality impacts.
Vineyard Wind Mem. in Supp. of Summ. J. (“Vineyard
Wind Opening Mem.”) 3-6 [Doc. No. 100]; Vineyard Wind
Reply 3-6 [Doc. No. 115].
NEPA “does not mandate particular results, but simply
prescribes the necessary process.” Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350, 109 S. Ct.
1835, 104 L. Ed. 2d 351 (1989). Where a plaintiff seeks “to
enforce a procedural requirement the disregard of which
could impair a separate concrete interest of theirs,” the
plaintiff can establish standing “without meeting all the
normal standard for redressability and immediacy.” Defs.
of Wildlife, 504 U.S. at 572 & n.7. But this less demanding
showing for redressability and immediacy does not relieve
the plaintiff of the requirement to demonstrate an injuryin-fact. AVX Corp., 962 F.3d at 119. Plaintiffs must “show
that ‘the government act performed without the procedure
in question [here, sufficient NEPA review] will cause a
distinct risk to a particularized interest of the plaintiff.’”
Town of Winthrop v. F.A.A., 535 F.3d 1, 6 (1st Cir. 2008)
(quoting City of Dania Beach v. F.A.A., 485 F.3d 1181,
1185, 376 U.S. App. D.C. 151 (D.C. Cir. 2007)) (brackets
in original). “[P]rudential standing requirements may
be satisfied so long as ‘the plaintiff’s interests are
[not] 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.’”
69a
Appendix B
Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d
18, 30 (1st Cir. 2007) (quoting Dennis v. Higgins, 498 U.S.
439, 461, 111 S. Ct. 865, 112 L. Ed. 2d 969 (1991)).
1.
Plaintiffs’ NEPA Claim as to the Right
Whales
Where Plaintiffs have alleged a sufficient injury-infact as to maintain their ESA claims, that injury-in-fact
is sufficiently particularized to maintain Plaintiffs’ NEPA
claims concerning right whales. For NEPA standing,
Plaintiffs need only demonstrate a particularized injuryin-fact that is not “so marginally related to or inconsistent
with” NEPA that it cannot be assumed that Congress
intended to permit Plaintiffs’ lawsuit. Here, Plaintiffs have
a particularized interest in right whales, which is not so
marginally related to NEPA review of the Vineyard Wind
Project as to preclude standing.
Accordingly, Defendants and Vineyard Wind’s
standing challenges to Plaintiffs’ NEPA claim regarding
right whales fail.
2.
Plaintiffs’ NEPA Claim as to Air Quality/
Emissions Concerns
Vineyard Wind contends that Plaintiffs have provided
insufficient evidence to demonstrate a concrete injury
with respect to the Project’s potential air emissions
or contributions to greenhouse gases, Vineyard Wind
Opening Mem. 4-5 [Doc. No. 100], pointing to Plaintiffs’
lack of expert testimony regarding air quality, as well as
70a
Appendix B
the ultimate conclusions of the Final EIS, which reflect
that the air quality impacts of the Project are (1) not
anticipated to impact Nantucket residents, (2) are likely
to be “negligible to minor” and “minor to beneficial,” and
(3) the anticipated impacts are not expected to exceed the
applicable National Ambient Air Quality Standards. Id. at
5-6; see also Joint SOF ¶¶ 162-164 [Doc. No. 118].
Plaintiffs respond that Vineyard Wind has set the bar
for standing under NEPA claims too high, pointing to Hall
v. Norton, 266 F.3d 969 (9th Cir. 2001), as instructive of
their burden. Pls. Opp. 18-19 [Doc. No. 105]. In Hall, the
plaintiff, a resident of Las Vegas, Nevada, brought NEPA
and Clean Air Act claims against the U.S. Bureau of Land
Management over its decision to exchange land with a
private developer after estimating that the proposed
development in the Law Vegas Valley would generate
increased emissions in an area already not in attainment
with federal air-quality standards. Id. The Ninth Circuit
reversed the district court’s grant of summary judgment
to the government on the grounds that Hall had averred
his existing respiratory issues would be aggravated by
emissions from the development and held that “evidence
of a credible threat to plaintiff’s physical well-being from
airborne pollutants falls well within the range of injuries
to cognizable interests that may confer standing.” Id. at
976. As Plaintiffs point out, the Ninth Circuit concluded
that “‘Hall need not establish causation with the degree
of certainty that would be required of him to succeed on
the merits, say, of a tort claim.’” Pls. Opp. 19 [Doc. No.
105] (quoting Hall, 266 F.3d at 977).
71a
Appendix B
But while Plaintiffs may only need to establish the
“‘reasonable probability’ of the challenged action’s threat
to his concrete interest,’” id. (citing Hall, 266 F.3d at 977),
such evidence is absent here. Plaintiffs contend that the
Project will emit air pollutants, which are harmful to
human health. Pls. Opp. 21 [Doc. No. 105]. Oliver states
generalized concerns for her respiratory health, and the
health of the entire region, from the Project’s potential
air quality impacts. Oliver Suppl. Decl. ¶ 12 [Doc. No.
108]. She likewise states a generalized concern about the
Project’s potential to increase greenhouse gas emissions
and contribute to the effects of climate change. Id. at ¶ 13.
However, Oliver does not point to any evidence to suggest
the risk to her will in
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