Allco Renewable Energy Ltd. v. Haaland (Vineyard Wind)

The federal district court for the District of Massachusetts found that a plaintiff challenging an Incidental Harassment Authorization issued pursuant to the Marine Mammal Protection Act for the Vineyard Wind offshore wind energy project failed to establish that the National Marine Fisheries Service acted arbitrarily, capriciously, or otherwise in violation of law. The court therefore granted federal defendants’ and the project developer’s motions for summary judgment.

The plaintiffs proposed to amend their complaint to include only claims under the Marine Mammal Protection Act.

On June 30, the court dismissed without prejudice the solar developer’s claims under the Endangered Species Act (ESA) and Outer Continental Shelf Lands Act (OCSLA) because the developer had not provided the requisite notice prior to filing the claims.

On June 13, 2022, the federal district court for the District of Massachusetts granted a motion to sever a solar energy developer’s challenges to the South Fork Wind offshore wind turbine project from the developer’s challenge to the Vineyard Wind Project. The court found that each project involved “a wholly distinct set of federal approvals,” that the claims “hinge on highly fact specific questions as to the adequacy of two separate agency review processes, supported by two distinct administrative records,” and that “the projects themselves were of markedly different size and scope, to be constructed in different locations, designed to provide electricity to homeowners in different states, and pursued by different companies.” The court also noted that the administrative record supporting the South Fork Wind project was not available when the federal defendants approved the Vineyard Wind Project. The court therefore concluded that the interests of justice and economy supported considering the South Fork Wind claims in a separate action.

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.

Two related companies that own, operate, and develop solar electric generating facilities and the president and senior general counsel (also a part-time resident of Edgartown, Massachusetts) filed a lawsuit in the federal district court for the District of Massachusetts challenging the Vineyard Wind Project, an 800-megawatt offshore wind farm that would be the first commercial-scale offshore wind farm in the United States. The plaintiffs alleged that the defendants violated NEPA, the Outer Continental Shelf Lands Act, the Clean Water Act, and the Marine Mammal Protection Act. The complaint’s allegations included that the final environmental impact statement (FEIS) failed to analyze the cumulative and lifecycle greenhouse gas impacts of offshore wind projects, and that the FEIS assumed, without analysis, that offshore wind generation would not itself add to global warming over the next 10 years and that offshore wind would displace natural gas generation and not other forms of renewable energy generation. The complaint also alleged that the FEIS did not take a hard look at warming generated by the project’s alteration of wind flow. The plaintiffs contended that the defendants should have evaluated a no-action alternative’s climate effects and effects on onshore renewable energy. In addition, the complaint alleged that the FEIS failed to properly analyze climate change effects on hurricanes that may impact the project and that the FEIS was “riddled with over-assessments of the purported benefits” of the project, including climate benefits. Another climate change-related allegation was an alleged failure to consider the impacts of the project and climate change on the food supply for the North Atlantic Right Whale.