ACK Residents Against Turbines v. U.S. Bureau of Ocean Energy Management

The federal district court for the District of Massachusetts rejected claims that the Bureau of Ocean Energy Management and National Marine Fisheries Service violated the Endangered Species Act and NEPA in connection with their decisions authorizing an offshore wind energy project off the coast of Martha’s Vineyard and Nantucket. The court agreed with the project developer that the plaintiffs did not demonstrate a concrete injury with respect to the project’s potential air emissions or contributions to greenhouse gases, characterizing as “generalized” the individual plaintiff’s concern regarding the project’s potential to increase greenhouse gas emissions and contribute to climate change. The court found that these concerns were insufficient to confer standing for the plaintiffs’ NEPA air quality and emissions claims. The court rejected the plaintiffs’ claims related to right whales on the merits.

The federal district court for the District of Massachusetts granted Vineyard Wind 1 LLC permission to intervene to defend federal authorizations of the Vineyard Wind offshore wind project against two lawsuits asserting violations of the National Environmental Policy Act, Endangered Species Act, and Administrative Procedure Act. The court concluded that at this juncture Vineyard Wind 1 LLC was not entitled to intervention as of right because even though the company had a protectible interest that could be impaired by the litigation, the company did not persuade the court that the “asymmetrical interests” of the company and the government defendants would prevent the government from adequately representing the company’s interests. The court found, however, that permissive intervention was appropriate.

Nantucket residents filed a lawsuit in federal court in Massachusetts alleging that the Bureau of Ocean Energy Management’s environmental review of the Vineyard Wind 1 offshore wind project did not comply with NEPA. The complaint alleged deficiencies in the environmental impact statement’s consideration of greenhouse gases (GHG) , including inadequate analysis and disclosure of construction-related emissions and operational emissions. The complaint also alleged that BOEM failed to account for “GHG reduction benefits of whales and how the Project and the other offshore wind projects, by causing whale mortality, will cause those benefits to disappear.” In addition to their NEPA claim, the plaintiffs asserted that the federal defendants violated the procedural and substantive requirements of the Endangered Species Act by failing to ensure that the project would not jeopardize the survival of the North Atlantic Right Whale and other federally listed species.