Amicus Curiae Brief — Nantucket Residents Against Turbines, et al., Petitioners v. Bureau of Ocean Energy Management, et al.
Supreme Court briefOct 22, 2024
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No. 24-337
In the
Supreme Court of the United States
NANTUCKET RESIDENTS AGAINST TURBINES, et al.,
Petitioners,
v.
BUREAU OF OCEAN ENERGY MANAGEMENT, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the First Circuit
BRIEF OF CLEAN OCEAN ACTION
AS AMICUS CURIAE IN SUPPORT
OF PETITIONERS
A ndrew J. Provence
Litwin & Provence, LLC
108 South Finley Avenue
Basking Ridge, NJ 07920
Lawrence S. Ebner
Counsel of Record
Capital A ppellate
A dvocacy PLLC
1701 Pennsylvania Avenue, NW
Washington, DC 20006
(202) 729-6337
lawrence.ebner@
capitalappellate.com
Counsel for Amicus Curiae
120017
A
(800) 274-3321 • (800) 359-6859
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................iii
INTEREST OF THE AMICUS CURIAE .................... 1
SUMMARY OF ARGUMENT ..................................... 5
ARGUMENT ................................................................ 9
The Court Should Grant Review To Decide
Whether the Endangered Species Act Requires
the Potential Cumulative Impacts of Additional
Offshore Wind Projects To Be Considered In
Evaluating the Risks Posed To Threatened and
Endangered Species By a Particular Offshore
Wind Project …………………………………….…....9
A.
The North Atlantic provides habitat for
numerous threatened and endangered
species …………………….………………….…..9
B.
The federal government has recognized
that offshore wind facilities have negative
impacts, including to threatened and
endangered species …………………………..12
ii
C.
The cumulative impacts of numerous
offshore wind projects in the North
Atlantic must
be
part
of
the
Endangered Species Act consultation
process if threatened and endangered
species are to be protected from extinction
………………...…………………………………18
D.
A
conservative
approach
to
the
Endangered Species Act consultation
process is warranted because the federal
government admittedly lacks critical data
and processes regarding the ecological
effects of offshore wind development ………22
CONCLUSION .......................................................... 25
iii
TABLE OF AUTHORITIES
Page(s)
Statutes and Regulations
16 U.S.C. § 1531 et seq. …………………………………2
16 U.S.C. § 1532(6) ……………………………………11
16 U.S.C. § 1532(20) ………………………………..…11
16 U.S.C. § 1536 ………………………………………….2
16 U.S.C. § 1536(a) …………..……..…………………11
50 C.F.R. § 402.14(g)(4) ………………………………11
Government Publications and Resources
Andrew Lipsky, NOAA Fisheries Chief, Offshore
Wind Ecology Branch, Symposium:
Progression Toward an Integrated Ecosystem
Based Approach to Assessing Environmental
Impact of Offshore Energy Development (July
18, 2024) (presentation available at YouTube,
https://tinyurl.com/OSWconstraints) …………..24
Angel McCoy, et al., Offshore Wind Market
Report: 2024 Edition, U.S. Dep’t of Energy,
Nat’l Renewable Energy Lab’y (Aug. 2024),
https://tinyurl.com/OSWReport24 …………....……6
iv
Bureau of Ocean Energy Mgmt., New York Bight
Draft Programmatic Environmental Impact
Statement, Vol. 1 (Jan. 2024),
https://tinyurl.com/ProgEIS……...………………..15
Bureau of Ocean Energy Mgmt., Vineyard Wind
1 Offshore Wind Energy Project Final
Environmental Impact Statement, Vol. 1,
(Mar. 2021), https://tinyurl.com/VW-EIS ……13-19
Endangered and Threatened Species in the New
England/Mid-Atlantic Region, NOAA
Fisheries, https://tinyurl.com/TESpecies
(last visited Oct. 8, 2024) ………….…………..…8, 9
Gulf of Maine, Bureau of Ocean Energy Mgmt.,
https://tinyurl.com/NewSaleNE (last visited
Oct. 8, 2024) ………………………………….…….…3
Incidental Take Authorizations for Other Energy
Activities (Renewable/LNG), NOAA
Fisheries, https://tinyurl.com/IHAdata (last
visited Oct. 11, 2024) ……………………………….21
Marine Turtles, N.J. Dep’t of Envtl. Protection,
https://tinyurl.com/DEPturtles (last visited
Oct. 8, 2024)………………………………………….10
Nat’l Marine Fisheries Serv., Endangered
Species Act Section 7 Consultation Biological
Opinion (Oct. 18, 2021),
https://tinyurl.com/NMFS-BiOp ………...13, 19, 20
v
Nat’l Marine Fisheries Serv., Incidental
Harassment Authorization (May 21, 2021),
https://tinyurl.com/VW1iha21 …………………….21
Nat’l Marine Fisheries Serv., Incidental
Harassment Authorization (Sept. 6, 2024),
https://tinyurl.com/VW1iha24 …………………….21
Nat’l Marine Fisheries Serv., Species in the
Spotlight: North Atlantic Right Whale,
Priority Actions 2021 - 2025 (Mar. 2021),
https://tinyurl.com/NARW21-25 ……….….…12, 13
New Jersey’s Endangered, Threatened, and
Special Concern Species, N.J. Fish &
Wildlife, https://tinyurl.com/DEPte (last
visited on Oct. 8, 2024) ………………………………9
NOAA Fisheries, Presentation to the MidAtlantic Fisheries Management Council:
Project-level Monitoring Standards for
Offshore Wind (Oct. 8, 2024), (presentation
available at YOUTUBE,
https://tinyurl.com/17Kfishkill) ………………..…14
vi
NOAA Library, Fisheries, Protected Species, and
Ecosystem Science in a New Era of Offshore
Wind Energy Development, YouTube (Mar.
9, 2022), https://tinyurl.com/NewEraOSW …...…..3
NY-NJ Estuary Program Mgmt. Conference, NY
Bight Restoration Plan, N.J. Dep’t of Envtl.
Protection (Mar. 1993),
https://tinyurl.com/NYNJBight …………………….1
Ocean Wind, Construction and Operations Plan:
Ocean Wind Offshore Wind Farm, Vol. 3,
Appendix I – Atlantic Sturgeon
Supplementary Material (May 18, 2023),
https://tinyurl.com/SwimBladders ………………14
Offshore Wind Energy: Protecting Marine Life;
NOAA Fisheries, https://tinyurl.com/
OtherImpacts (last visited Oct. 10, 2024) ……....16
Outer Continental Shelf Air Permit No. OCSEPA-R2 NJ 02, U.S. Envtl. Protection
Agency, Region 2 (Feb. 15, 2024),
https://tinyurl.com/AirEmpireWind……………...17
Outer Continental Shelf Air Permit No. OCSEPA-R2 NY 01, U.S. Envtl. Protection
Agency, Region 2 (Sept. 30, 2024),
https://tinyurl.com/AirAtlanticShores …………...17
Piping Plover, Charadrius Melodus, N.J. Dep’t
of Envtl. Protection, https://tinyurl.com/
DEPplover (last visited Oct. 8, 2024) ……...…….10
vii
Protecting and Conserving Marine Life, N.Y.
State Dep’t of Envtl. Conservation,
https://tinyurl.com/DEClifecycle (last visited
Oct. 8, 2024)……………………..……………….…2, 5
Regions, Nat’l Oceanic & Atmospheric Admin.,
https://tinyurl.com/NOAAregions (last visited
Oct. 5, 2024) ……………………………...……..…….2
Roseate Tern, Sterna Dougallii, N.J. Dep’t of
Envtl. Protection, https://tinyurl.com/
DEProseate (last visited Oct. 8, 2024) …………..10
The White House, Fact Sheet: Biden
Administration Jumpstarts Offshore Wind
Energy Projects to Create Jobs, (Mar. 29,
2021), https://tinyurl.com/jumpstartOSW ……4, 18
U.S. Envtl. Prot. Agency, Region 2,
Programmatic Environmental Impact
Statement for Future Wind Energy
Development in the New York Bight: EPA
Detailed Comments (Aug. 10, 2022)
https://tinyurl.com/USEPAletter ……..…………..17
Other Resources
About COA, https://cleanoceanaction.org/aboutcoa, Clean Ocean Action (last visited Oct. 11,
2024) …………………………………………………2
viii
Alejandro De La Garza, Whales are Dying Along
the East Coast. And a Fight is Surfacing
Over Who’s to Blame, Time (Feb. 13, 2023,
7:00 AM), https://tinyurl.com/strandings …………..…15
BOEM to Hold Central Atlantic Lease Sale Aug.
14, Mid-Atlantic Ocean Data Portal (Jul. 2
2024), https://tinyurl.com/NewSaleMA …….…….3
IHAs for Marine Mammal Takes Offshore
Wind Projects on the East Coast, Clean
Ocean Action (Oct. 10, 2023),
https://tinyurl.com/IHAreview…………………….21
Miriam Makeba, South African History Online,
https://tinyurl.com/MakebaBio (last visited
Oct. 8, 2024)…………………………………………...5
Miriam Makeba Quotes, Quote.org,
https://tinyurl.com/MakebaQuote (last
visited Oct. 8. 2024) ……………………..…………...5
Reg’l Wildlife Science Collaborative for Offshore
Wind, An Integrated Science Plan for
Wildlife, Habitat, and Offshore Wind Energy
in U.S. Atlantic Waters (June 30, 2023),
https://tinyurl.com/RWSCOWpdf…………………10
Vineyard Wind 1, Vineyard Wind,
https://www.vineyardwind.com/vw1-1
(last visited Oct. 8, 2024) ………………………......3
1
INTEREST OF THE AMICUS CURIAE 1
Clean Ocean Action, Inc. is a § 501(c)(3) nonprofit
environmental organization with a mission of
improving the degraded water quality of the marine
waters off the New Jersey/New York coast, an area of
the Atlantic Ocean known as the NY/NJ Bight, 2 for all
forms of life. Founded in 1984, Clean Ocean Action
works as a broad-based coalition on a variety of issues
with as many as 100 active boating, business,
community, conservation, diving, environmental,
fishing, religious, service, student, surfing, and
women’s groups. Clean Ocean Action researches
pollution issues affecting the marine environment,
educates the public, and launches grassroots
campaigns to advocate for the elimination of each
pollution source. Its many successful campaigns
Petitioners’ and Respondents’ counsel were provided timely
notice of this brief in accordance with Supreme Court Rule 37.2.
No counsel for a party authored this brief in whole or part, and
no party or counsel other than the amicus curiae, its members, or
its counsel made a monetary contribution intended to fund
preparation or submission of this brief.
1
2 An area of the ocean bounded by the shores of Cape May, New
Jersey to Montauk Point, Long Island, and the edge of Continent
Shelf to the east of Cape May and to the south of Montauk Point.
See NY-NJ Estuary Program Management Conference, NY Bight
Restoration Plan, N.J. Dep’t of Envtl. Protection at 11 (Mar.
1993), https://tinyurl.com/NYNJBight.
2
include the closure of all eight ocean dumpsites
located in the NY/NJ Bight. 3
Located in the North Atlantic, 4 the NY/NJ Bight
provides habitat for hundreds of species of fish, birds
and other marine life, who depend on these environs
for shelter, food, breeding and/or migration. The
abundant marine life in the NY/NJ Bight includes
numerous threatened and endangered fish, sea
turtles, birds and whales. Marine life, of course, is not
confined to man-made boundary lines and many
species travel beyond the NY/NJ Bight and
throughout the North Atlantic, either seasonally or
during their life-cycle. 5
***
The question presented by this appeal is whether
federal agencies can, consistent with the plain
language of the Endangered Species Act (“ESA”), 6
exclude from their Section 7 analysis, 16 U.S.C.
§ 1536, known and available science regarding
3 Fo r
mo re inf o r m at i o n a bo u t C le a n O ce an Ac t io n
and
its
successful
campaigns,
see
About
COA,
https://cleanoceanaction.org/about-coa.
The North Atlantic is the region extending from Virginia to
Maine. See Regions, Nat’l Oceanic & Atmospheric Admin.,
https://tinyurl.com/NOAAregions (last visited Oct. 5, 2024).
4
Protecting and Conserving Marine Life, N.Y. State Dep’t of
Envtl. Conservation, https://tinyurl.com/DEClifecycle (last
visited Oct. 8, 2024).
5
6 16 U.S.C. § 1531 et seq.
3
impacts on an endangered species resulting from
federal actions. As Petitioners explain, the legal
answer is that they cannot, and as argued herein by
Clean Ocean Action, the practical answer is they
cannot, if threatened and endangered (“T&E”) species
in the NY/NJ Bight and greater North Atlantic region
are to be protected from extinction.
This appeal pertains to the federal approval
process of the first commercial-scale offshore wind
(“OSW”) development in the North Atlantic—
Vineyard Wind 1. 7 Clean Ocean Action hopes to
impress upon this Court that Vineyard Wind is only
the first of 46 OSW facilities in the North Atlantic. 8 In
total, these facilities will occupy over 3,500,000 acres
of ocean and result in the installation of 10,000 miles
of submarine cables, and 3,400 massive turbines, 9
each standing as tall as a New York City skyscraper
with blades the length of a football field. The federal
government intends for many of these OSW facilities
7 Vineyard Wind 1, Vineyard Wind, https://tinyurl.com/2jk5nb37
(last visited Oct. 8, 2024).
8 See Table 1, infra pp. 6-7.
NOAA Library, Fisheries, Protected Species, and Ecosystem
Science in a New Era of Offshore Wind Energy Development,
YouTube (Mar 9, 2022), https://tinyurl.com/NewEraOSW (stated
in description); Gulf of Maine, Bureau of Ocean Energy Mgmt.,
https://tinyurl.com/NewSaleNE (last visited Oct. 8, 2024); and
BOEM to Hold Central Atlantic Lease Sale Aug. 14, Mid-Atlantic
O ce an D a ta Po r ta l ( J u l. 2 , 2 0 24) , h t tp s :/ /t i ny url .co m/
NewSaleMA.
9
4
to be online by 2030. 10 Thus, Vineyard Wind 1
represents a new industrial use of the North Atlantic,
and part of a coordinated effort to radically transform
who and what can use and occupy its waters in the
immediate future. Consequently, the outcome of the
subject appeal will affect Clean Ocean Action’s
interests not only through its impact on the interconnected marine ecosystem but also the precedent for
ESA review of future OSW projects throughout the
North Atlantic.
We believe that this brief will enhance the
Supreme Court’s understanding of the importance of
the question presented. Clean Ocean Action has a
longstanding history of representing a broad base of
public organizations with varying ocean protection,
conservation, recreational and commercial interests
that are concerned about the impact of the large-scale
OSW development in the NY/NJ Bight and the North
Atlantic. With respect to the protection of T&E
species, that interest is wholly dependent upon two
federal agencies—the Bureau of Energy Management
(“BOEM”) and National Marine Fisheries Service
(“NMFS”)—acting in accordance with the ESA.
Accordingly, Clean Ocean Action’s amicus brief gives
a voice to that public interest.
10 The White House, Fact Sheet:
Biden Administration
Jumpstarts Offshore Wind Energy Projects to Create Jobs (Mar.
29, 2021), https://tinyurl.com/jumpstartOSW.
5
SUMMARY OF ARGUMENT
“But if you are going to wear blinders
then you do not know the world.”11
This appeal has far greater implications than one
discrete area of the North Atlantic (Nantucket), one
project (Vineyard Wind 1), or one species (North
Atlantic Right Whale). The greater concern is that
numerous T&E species throughout the North Atlantic
will be impacted by pervasive OSW development.
Accordingly, Clean Ocean Action urges this Court to
grant certiorari and to hold that the cumulative
impacts of OSW development must be considered
during the ESA consultation process.
Marine life is not confined to man-made boundary
lines. Many species travel throughout the NY/NJ
Bight and the North Atlantic, either seasonally or
during their life-cycle. 12 This includes the multiple
T&E fish, sea turtles, birds and whales found in the
11 M ir ia m
M ake b a, So u t h Af r ic an si ng e r /hum an r ig h t s
activist, 1932-2008.
Miriam Makeba Quotes, Quote.org,
https://tinyurl.com/MakebaQuote (last visited Oct. 8. 2024);
Miriam
Makeba,
South
African
History
Online,
https://tinyurl.com/MakebaBio (last visited Oct. 8, 2024).
12 Protecting and Conserving Marine Life, supra n.5.
6
TABLE 1. OSW Activity / North Atlantic 13
13
Angel McCoy, et al., Offshore Wind Market Report: 2024
Edition, U.S. Dep’t of Energy, Nat’l Renewable Energy Lab’y
(Aug. 2024), at Figure ES-1, https://tinyurl.com/OSWReport24.
7
8
North Atlantic. 14 In other words, their habitat is not
a given OSW project area, but an entire region.
With their habitat soon to be inundated with as
many as forty-six new OSW developments, 15 these
T&E species will drastically have to alter where they
feed, breed, forage and care for their young. Their very
survival will depend, in part, on whether BOEM and
NFMS properly evaluate the risks to these T&E
species presented by not one, but by the scores of
pending OSW developments. BOEM and NMFS must
remove the “blinders” from their ESA reviews of OSW
development for the true jeopardy to T&E species to
be properly understood and evaluated.
14 Endangered and Threatened Species in the New England/Mid-
Atlantic Region, NOAA Fisheries, https://tinyurl.com/TESpecies
(last visited Oct. 8, 2024).
15 See Table 1, supra pp. 6-7.
9
ARGUMENT
The Court Should Grant Review To Decide
Whether the Endangered Species Act Requires
the Potential Cumulative Impacts Of Additional
Offshore Wind Projects To Be Considered In
Evaluating the Risks Posed To Threatened and
Endangered Species By a Particular Offshore
Wind Project
A.
The North Atlantic provides habitat
for
numerous
threatened
and
endangered species
The Petitioners present an excellent case as to the
jeopardy presented to the North American Right
Whale by OSW development. The North American
Right Whale, however, is only one of many federallylisted species that depend on the North Atlantic
environs for shelter, food, breeding and/or migration: 16
Whales (All Endangered)
Blue Whale
Fin Whale
Humpback Whale
North American Right Whale
Sei Whale
Sperm Whale
16 NOAA Fisheries, supra n.14, and New Jersey’s Endangered,
Threatened, and Special Concern Species, N.J. Fish & Wildlife,
https://tinyurl.com/DEPte (last visited on Oct. 8, 2024).
10
Sea Turtles (Endangered* or Threatened**) 17
Hawksbill Sea Turtle*
Kemp’s Ridley Sea Turtle*
Leatherback Sea Turtle*
Green Sea Turtle**
Loggerhead Sea Turtle**
Fish (Endangered* or Threatened**)
Atlantic Sturgeon*
Shortnose Sturgeon*
Atlantic Salmon**
Giant Manta Ray**
Oceanic Whitetip Shark**
Shore Birds (Endangered* or Threatened**)
Roseate Tern* 18
Piping Plover** 19
Red Knot (rufa subspecies)** 20
Marine Turtles, N.J. Dep’t of Envtl. Protection,
https://tinyurl.com/DEPturtles (last visited Oct. 8, 2024).
17
18 Roseate Tern, Sterna Dougallii, N.J. Dep’t of Envtl. Protection,
https://tinyurl.com/DEProseate (last visited Oct. 8, 2024).
Piping Plover, Charadrius Melodus, N.J. Dep’t of Envtl.
Protection, https://tinyurl.com/DEPplover (last visited Oct. 8,
2024).
19
Reg’l Wildlife Science Collaborative for Offshore Wind, An
Integrated Science Plan for Wildlife, Habitat, and Offshore Wind
Energy in U.S. Atlantic Waters, at 137 (June 30, 2023),
https://tinyurl.com/RWSCOWpdf.
20
11
“Endangered” means a species is in danger of
extinction through all or a significant portion of its
range. 21 “Threatened” means a species is likely to
become endangered within the foreseeable future. 22
By virtue of being listed as “endangered” or
“threatened,” the ESA provides that all of these
species warrant specific protections to stave off the
threat of extinction. These protections include the socalled “Section 7 consultation” process with NMFS
that culminates with a determination as to whether
the subject action would jeopardize the survival of a
T&E species or result in a loss of critical habitat. 23
That determination is to be made using the “best
scientific and commercial data available.” 24
21 16 U.S.C. § 1532(6).
22 16 U.S.C. § 1532(20).
23 See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(4).
24 16 U.S.C. § 1536(a)(2).
12
B.
The federal government has recognized
that offshore wind facilities have
negative
impacts,
including
to
threatened and endangered species
Indisputably, each OSW project will impact the
marine environment and the life it supports before
and during construction and throughout its
operational life. We know this because the federal
government has told us so. The federal government
has acknowledged, for instance, that OSW facilities
create underwater noise, sea floor disturbance and
vessel traffic, to the extent of causing temporary and
long-term impacts to T&E species like the North
American Right Whale. 25
Underwater noise can be generated before
construction
by
seismic
surveys,
during
construction—at excruciating levels—from piledriving the monopoles, and during operations from the
whooshing of the massive turbine blades. The federal
government has recognized that such noise can result
in “hearing impairment, the masking of vocal
communication, physiological impacts (e.g., stress),
and/or behavioral disturbance, as well as mortality
25 See Nat’l Marine Fisheries Serv., Species in the Spotlight:
North Atlantic Right Whale, Priority Actions 2021-2025, at 13
(Mar. 2021), https://tinyurl.com/NARW21-25.
13
and injury” to whales 26 and finfish 27 as well. NMFS
has further acknowledged that some of these noises
will be so disruptive that impacted animals will have
to leave any area within four kilometers of the origin
for a period of up to three hours. 28 During that time,
the impacted animals will have to find alternative
migration routes and alternative places to forage. 29
Fish with swim bladders, such as the endangered
Atlantic Sturgeon and Shortnose Sturgeon, may not
be able to escape underwater impulse sounds
generated by OSW pile driving operations. As
explained by BOEM:
As pressure waves pass through a fish,
its swim bladder would be rapidly
squeezed by the high pressure then
would rapidly expand as the under
pressure component of the wave passes
through the fish. The pneumatic
pounding on tissues contacting the swim
bladder may rupture capillaries in
26 Id. at 12.
Bureau of Ocean Energy Mgmt., Vineyard Wind 1 Offshore
Wind Energy Project Final Environmental Impact Statement,
Vol. 1 (EIS), at 3-51 (Mar. 2021), https://tinyurl.com/VW-EIS.
27
28 Nat’l Marine Fisheries Serv., Endangered Species Act Section
7 Consultation Biological Opinion (BiOp) (Oct. 18, 2021), at 193,
https://tinyurl.com/NMFS-BiOp.
29 Id.
14
internal organs as indicated by observed
blood in the abdominal cavity and
maceration of kidney tissues. 30
NMFS recently stated that the sound generated from
pile driving operations at an OSW facility in the North
Atlantic is the likely cause of a recent fish kill of over
17,000 Atlantic croaker. 31 Consistent with the rapid
expansion of swim bladders, these fish were found to
have broken bones and other internal injuries. 32
The federal government recognizes that OSW
development will lead to increased vessel traffic,
particularly during construction (which can last seven
years or more) and during decommissioning
activities. 33 A single OSW facility can generate 3,285
annual vessel roundtrips during construction and
30 Ocean Wind, Construction and Operations Plan: Ocean Wind
Offshore Wind Farm, Vol. 3, Appendix I – Atlantic Sturgeon
Supplementary
Material
(May
18,
2023),
at
5,
https://tinyurl.com/SwimBladders.
31 NOAA Fisheries, Presentation to the Mid-Atlantic Fisheries
Management Council: Project-level Monitoring Standards for
Offshore Wind (Oct. 8, 2024), (presentation available at YouTube,
https://tinyurl.com/17Kfishkill; see slide and remarks at 2:37:46
to 2:39:28).
32 See id.
33 EIS, supra n.27, at 3-22.
15
installation. 34 That number decreases slightly during
maintenance and operations to 2,902 annual vessel
roundtrips. 35 During decommissioning, the annual
vessel trips can be expected to increase back to 3,285
annual vessel roundtrips. 36
Vessel traffic “poses a high-frequency, highexposure, and collision risk to marine mammals,
especially North American Right Whales, other baleen
whales, and calves that spend considerably more time
at/near the ocean surface.” 37 The Vineyard Wind 1
development is expected to result in 39 vessel strikes
of T&E sea turtles. 38 Vessel strikes caused by OSW
seismic surveys remains a potential cause of the
record number of whale and marine mammal deaths
and strandings in recent years. 39
OSW development also results in benthic (i.e., sea
floor) disturbances. Thousands of monopoles are to be
Bureau of Ocean Energy Mgmt., New York Bight Draft
Programmatic Environmental Impact Statement, Vol. 1, at 3.5.668 to 6-69 (Jan. 2024), https://tinyurl.com/ProgEIS.
34
35 See id. at 3.5.6.-69.
36 See id. at 3.5.6.-69.
37 EIS, supra n.27, at 3-84.
38 See id. at 3-120.
39 See e.g., Alejandro De La Garza, Whales are Dying Along the
East Coast. And a Fight is Surfacing Over Who’s to Blame, Time
(Feb. 13, 2023, 7:00AM), https://tinyurl.com/strandings.
16
driven deep into the seabed, and thousands of miles of
submerged cables are to be buried under the sea floor,
destroying any benthic habitat in those areas. The
monopoles and service platforms of the Vineyard
Wind 1 project will occupy or otherwise impact
approximately 45 acres of sea floor, and the cabling
will impact an additional 186.4 miles of benthic
habitat. 40 The federal government recognizes these
disturbances, coupled with the noise from pile-driving
operations and seismic surveys, will be so pervasive as
to create moderate to major impacts to commercial
fisheries and recreational fishing. 41
There are, of course, other environmental impacts
associated with OSW development, including:
•
impacts to birds, including migration
disturbances and fatal interactions with
operating turbines;
•
introduction of electro-magnetic fields that
impact predator detection, communication,
and the ability for fish and shellfish to find
mates;
•
impacts to organism life cycle stages,
including larval dispersal and spawning; and
40 EIS, supra n.27, at 3-38.
41 See id. at 3-210 to 3-211.
17
•
changes to species composition, abundance,
distribution, and survival rates. 42
OSW facilities also emit thousands of tons of carbon
dioxide each year 43 and the most potent known
greenhouse gas, sulfur hexafluoride 44. These air
emissions cast a brownish hue over this “green”
energy source.
Clearly, OSW development will
inherently impact marine life, including T&E species.
42 Id. at A-99 to A-100; Offshore Wind Energy:
Protecting Marine
Life; NOAA Fisheries, https://tinyurl.com/OtherImpacts (last
visited Oct. 10, 2024).
43 See, e.g., Outer Continental Shelf Air Permit No. OCS-EPA-R2
NJ 02, U.S. Envtl. Protection Agency, Region 2 (Feb. 15, 2024),
https://tinyurl.com/AirEmpireWind; Outer Continental Shelf Air
Permit No. OCS-EPA-R2 NY 01, U.S. Envtl. Protection Agency,
Region 2 (Sept. 30, 2024), https://tinyurl.com/AirAtlanticShores.
44 U.S. Envtl. Protection Agency, Region 2, Programmatic
Environmental Impact Statement for Future Wind Energy
Development in the New York Bight: EPA Detailed Comments
(Aug. 10, 2022) at 3, https://tinyurl.com/USEPAletter.
18
C.
The cumulative impacts of numerous
offshore wind projects in the North
Atlantic must
be
part
of
the
Endangered Species Act consultation
process if threatened and endangered
species are to be protected from
extinction
As Table 1, supra, depicts, Vineyard Wind 1 is not
an isolated project; it is one of 46 OSW developments
planned for the North Atlantic. As noted above, the
federal government intends for many of these OSW
developments to be online by 2030. 45 This means preconstruction, construction and operational activities
will be simultaneously occurring throughout the
North Atlantic. 46 The impacts from Vineyard Wind 1
will be intensified by as many as 45 additional OSW
projects. Underwater noise, vessel traffic and habitat
disturbances will be generated from multiple sources,
creating a web of impacts that may be impossible for
some sea life to endure, let alone escape. But with
proverbial blinders on, BOEM and NMFS conducted
their ESA review as if Vineyard Wind 1 will be the sole
OSW development in the North Atlantic. This flawed
ESA review does not reflect the altered world T&E
species will come to know by 2030.
45 The White House, supra n.10.
46 See e.g., EIS, supra n.27, at 3-206 (as to simultaneous noise
impacts).
19
The certiorari petition contains an excellent
summary of the ESA consultation process and the
legal duty of NMFS to review cumulative impacts of
OSW development on T&E species. See Pet. at 6-8, 1013. Clean Ocean Action’s aim is to highlight the
practical reasons why this must be done if T&E
species of the North Atlantic are to survive.
As discussed above, Vineyard Wind 1 will have
impacts that will force T&E species to leave areas of
activity, find alternative migration routes and seek
alternative places to forage and breed. 47 NFMS
apparently concluded that the impacts of Vineyard
Wind 1 alone will not jeopardize the continued
existence of any T&E species. 48 However, in the
context of numerous OSW projects occurring
simultaneously (as the federal government knows to
be the case here), 49 such a conclusion is implausible.
With OSW projects being developed and operated
across the North Atlantic, where are T&E species to
relocate from the Vineyard Wind 1 project area? Can
they find alternative areas with the resources needed
to feed, shelter and breed? Can they find such
alternative areas without experiencing fatigue,
starvation, predation or vessel strike? NMFS has not
answered any of these questions. Like roadkill whose
woodland shelter was bulldozed for yet another
47 BiOp, supra n.28.
48 See id. at 382.
49 EIS, supra n.27, at 3-206.
20
residential subdivision or warehouse, T&E species
may succumb to the impacts of pervasive OSW activity
before finding suitable alternative habitats.
Moreover, every harm NFMS allows T&E species
to suffer from a single OSW project will be multiplied
by the number of other OSW projects in the habitat.
This could be a factor of 45 (for each intended OSW
project) or greater. For instance, those 39 T&E turtles
that NFMS calculates will suffer vessel strikes from
the Vineyard Wind 1 project 50 are merely a subset of
all the T&E sea turtles that will be struck by OSW
vessels in the North Atlantic. Can the respective
populations of T&E species endure so many casualties
and fatalities? In the ESA consultation process for
Vineyard Wind 1, BOEM and NFMS did not even
address the question. 51
This compounding effect is further illustrated by
the number of “takes” of marine mammals (including
T&E whale species) the federal government has
already authorized for OSW projects. A “take” is the
harassment of a marine mammal to the extent (i) of
bodily injury (Level A harassment) or (ii) disturbance
of behavioral patterns (Level B harassment). Thus
far, Vineyard Wind 1 has received authorization to
injure 124 marine mammals and to disturb another
50 See supra p. 15.
51 See BiOp, supra n.28, at 329-330.
21
8,114. 52 But those are a fraction of the Level A and
Level B takes authorized by NMFS for OSW facilities
off the East Coast. In fact, NFMS has authorized a
total of 1,492 Level A takes and 691,898 Level B takes
to date and is considering the authorization of an
additional 189 Level A takes and 97,470 Level B. 53
Clearly, the impacts of Vineyard Wind 1 contribute to
impacts from OSW development throughout the
Atlantic Coast.
Where is the tipping point for a particular T&E
species? NFMS is not going to find it looking through
blinders at a single OSW project that may not
generate any more noise, vessel traffic or benthic
destruction than any of the projects that preceded it.
However, those impacts, which in a vacuum may be
regarded as “negligible” or “insignificant”, may prove
to be the tipping point for species already or
foreseeably stressed by other OSW projects. If the
federal government continues to ignore cumulative
impacts in future ESA reviews, T&E species may
Nat’l Marine Fisheries Serv., Incidental Harassment
Authorization
(May
21,
2021),
at
22,
https://tinyurl.com/VW1iha21; Nat’l Marine Fisheries Serv.,
Incidental Harassment Authorization, Sept. 6, 2024, at 31,
https://tinyurl.com/VW1iha24
52
53 IHAs for Marine Mammal Takes Offshore Wind Projects on the
East Coast, Clean Ocean Action (Oct. 10, 2024), at 1,
https://tinyurl.com/IHAreview (data from April 24, 2014 through
October 10, 2024); see also, Incidental Take Authorizations for
Other Energy Activities (Renewable/LNG), NOAA Fisheries,
https://tinyurl.com/IHAdata (last visited Oct. 11, 2024).
22
experience “death by a thousand papercuts” and move
closer or succumb to extinction as OSW development
grows throughout the North Atlantic.
D.
A conservative approach to the
Endangered Species Act consultation
process is warranted because the federal
government admittedly lacks critical
data and processes regarding the
ecological effects of offshore wind
development
As the rush to develop 30 gigawatts of OSW energy
by 2030 has begun, the science necessary to protect
marine life, including T&E species, is lagging behind.
The federal government has openly admitted that it
lacks fundamental data and processes for its
evaluative models for the ecological impacts from
OSW development. Inaccurate modeling for a given
project can lead to injurious results. Inaccurate
modeling for scores of projects encompassing millions
of acres of ocean habitat can lead to disastrous results.
Accordingly, it is imperative that BOEM and NMFS
are conservative in their approach to the ESA
consultation
process,
which
would
include
consideration of cumulative impacts from other OSW
developments.
23
At the 2024 State of the Science symposium on
OSW, NFMS 54 made some damning admissions as to
the “constraints” it is experiencing in attempting to
create ecosystem models to assess the impact of OSW
development (“OWD”). During a panel on
environmental impact assessment, NMFS presented
the following “constraints” to properly modeling the
impacts of OWD:
—Limited empirical data to ground truth,
calibrate, or validate models
—Limited species specific and life stage
specific data available
—Limited knowledge on the spatial extent of
impact producing factors
—Most published studies are from a few
locations in Europe which are not directly
comparable to Northeast U.S. shelf ecosystem
—Limited knowledge of the spatial scale of
biological impacts
—High levels of uncertainty for individual
effects and for cumulative effects
54 NMFS is an office of the National Oceanic and Atmospheric
Administration and is also known as “NOAA Fisheries”, the
name it used during the symposium.
24
—Limited information on
development will interact
ecosystem stressors
how
with
OWD
other
—Limited ability to integrate across OWD
development because different methods and
approaches are used to collect data
—Access to data collected by numerous
project monitoring programs
—No established monitoring programs for
socio
economic
impacts
from
OWD
development. 55
NMFS concluded by stating there is a “design
challenge” to fill the above-referenced data gaps “so we
can make sure our models are grounded in
understanding what really is happening in the
ocean”. 56
These concessions are alarming. If NFMS does not
yet “understand what is really happening in the
ocean” as OSW development accelerates, how can it
properly evaluate the jeopardy a single development
presents to T&E species? The answer is that it cannot,
55 Andrew Lipsky, NOAA Fisheries Chief, Offshore Wind Ecology
Branch, Symposium: Progression Toward an Integrated
Ecosystem Based Approach to Assessing Environmental Impact of
Offshore Energy Development (July 18, 2024) (presentation
available at YouTube, https://tinyurl.com/OSWconstraints; see
slide and remarks at 53:58-55:33).
56 Id. at 55:40-55:51.
25
which makes its choice to ignore the cumulative
impacts of an “armada” of OSW projects even more
concerning. Until such data and processes build a
better model, it is imperative that the ESA
consultation process be as conservative as possible in
evaluating the threats to T&E species. Such an
approach demands that the cumulative impacts from
all OSW development within a given habitat be
carefully evaluated by BOEM and NFMS.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
LAWRENCE S. EBNER
Counsel of Record
CAPITAL APPELLATE ADVOCACY PLLC
1701 Pennsylvania Ave., NW
Washington, D.C. 20006
(202) 729-6337
lawrence.ebner@capitalappellate.com
ANDREW J. PROVENCE
LITWIN & PROVENCE, LLC
108 South Finley Avenue
Basking Ridge, NJ 07920
(973) 642-1801
aprovence@litprolaw.com
October 2024
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