Save Long Beach Island v. U.S. Department of Commerce

The federal district court for the District of New Jersey granted summary judgment to federal defendants in a lawsuit challenging six Incidental Harassment Authorizations (IHAs) and a Letter of Authorization (LOA) issued pursuant to the Marine Mammal Protection Act to developers of offshore wind facilities off the coast of New York and Jersey that authorized the take of marine mammals in conjunction with the development of the projects. The court ruled that claims related to two of the facilities—Atlantic Shores and Bluepoint Wind—were moot because their IHAs had expired and there was “no longer a reasonable expectation or demonstrated probability” that the Trump administration would issue future approvals. Although the court found that challenges to other expired IHAs were not moot, the court found that the plaintiffs lacked standing to challenge those IHAs as well as the unexpired LOA because they did not prove injury in fact. Alternatively, the court found that the plaintiffs’ claims failed on the merits because they did not show that take estimates of Right Whales and Humpback Whales were arbitrary and capricious. The court did not address the climate change-related allegations in the plaintiffs’ complaint.

The federal district court for the District of New Jersey dismissed a challenge brought by an environmental group and its president to the National Marine Fisheries Service’s incidental take/ harassment authorizations (ITAs) for offshore wind projects for lack of subject matter jurisdiction. The plaintiffs’ allegations included claims that the climate change benefits of offshore wind were overstated and that the defendants failed to recognize “the immense carbon sequestration capacity of great whales.” The court found that the plaintiffs failed to allege injury-in-fact and therefore lacked standing. The court also found that challenges to pending incidental take authorizations were not ripe because the pending ITAs were not final agency actions. In addition, the court found that any challenge to an expired ITA was moot.