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

The First Circuit Court of Appeals upheld the U.S. Bureau of Ocean Energy Management’s (BOEM’s) approval of the construction of the Vineyard Wind offshore wind project. Nantucket residents argued on appeal that the biological opinion prepared in conjunction with the project violated the Endangered Species Act by concluding that the project likely would not jeopardize the endangered North Atlantic right whale. The residents also argued that BOEM violated NEPA by relying on the biological opinion. The First Circuit rejected the residents’ critiques of the biological opinion, including an argument that the opinion did not properly analyze the right whale’s current status and environmental baseline because it ignored a recent study “that highlighted the growing importance of southern New England waters for right whale survival” (because of rising global temperatures). The First Circuit found that the biological opinion “repeatedly acknowledged that right whales are increasingly present in southern New England waters.” The First Circuit treated as waived challenges to the environmental impact statement not related to the biological opinion. The residents’ challenges before the district court had included that analysis of the project’s impacts on greenhouse gas emissions was inadequate.