A major US offshore wind farm scored a significant legal victory as a federal judge dismissed an environmentalist group's challenge to the Vineyard Wind project. This ruling is illustrative of the myriad legal challenges faced by offshore renewable energy projects.
In Nantucket Residents Against Turbines and Valerie Oliver v. U.S Bureau of Energy Management et. al.1 a citizen's group brought an action against the Bureau of Energy Management ("BOEM") and other federal agencies contending that BOEM's decision to approve the Vineyard Wind Project, an offshore wind farm off of Martha's Vineyard, was based on an inadequate environmental assessment under the National Environmental Policy Act2 ("NEPA") and the Endangered Species Act3 ("ESA") and the Administrative Procedure Act.4 The citizen group focused on the Vineyard Wind project's impact on the North Atlantic right whale, which is listed as endangered under the ESA.
District Judge D.J. Talwani rejected the challenge and granted summary judgment to BOEM. The Court's opinion set forth the lengthy history of the Vineyard Wind permitting journey, which was over a decade long. BOEM is the federal agency charged with developing, leasing and permitting wind energy on the Outer Continental Shelf ("OCS"). The Vineyard Wind project goes back to 2012 when BOEM considered OCS areas near Nantucket and Martha's Vineyard, Massachusetts for wind energy development.
BOEM conducted environmental assessments in 2014 and lease auctions in 2015. Vineyard Wind was the successful bidder and obtained the OCS lease for the wind farm. Before construction could start, Vineyard Wind was required to submit a Site Assessment Plan ("SAP") and a Construction Operations Plan ("COP") to BOEM for review and approval. The SAP and COP underwent several iterations and were required to consider environmental issues. After a lengthy review process, BOEM ultimately approved both the SAP and COP.
In 2017, BOEM started the process to prepare an Environmental Impact Statement ("EIS") based on the COP. This started a four-year process which involved public notice and comments in the Federal Register and revisions to the COP by Vineyard Wind and BOEM. During this period, BOEM prepared a draft EIS, a Supplemental EIS and ultimately a 1,600-page Final EIS, which was published on March 12, 2021.
As part of its review process, BOEM requested that the National Marine Fisheries Service ("NMFS") prepare a Biological Opinion under the ESA to determine the impact of the Vineyard Wind project on protected whales. After several revisions and accounting for changes in the COP, NMFS ultimately found that the project could go forward under the appliable ESA provisions. BOEM issued final approval for Vineyard Wind's COP on July 15, 2021, subject to numerous terms and conditions which were designed to protect right whales.
Plaintiffs contended that BOEM failed to properly consider the impact on right whales under ESA and argued that the EIS and Biological Opinion were legally insufficient. After a detailed review of the extensive administrative record the Court held that the Plaintiffs failed to demonstrate that the Biological Opinion or the Final EIS violated the provisions of the ESA or NEPA. The Court therefore granted BOEM summary judgment.
Judge Talwani's decision was supported by a thorough administrative record. Building a legally sufficient administrative record is a key takeaway for offshore wind stakeholders working in a highly regulated area.
The ESA challenge is one of four pending environmental challenges to the Vineyard Wind Project. These suits are being litigated as construction is ongoing and underscores the complex legal issues faced by offshore wind developers.
Footnotes
1. C.A. No. 1:21-cv-11390, United States District Court for the District of Massachusetts.
2. 42 U.S.C. §§ 1421 et. seq.
3. 15 U.S.C. §§ 1531 et seq.
4. 5 U.S.C. §§ 701-706
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