Three lawsuits down, at least three appeals to go.
So it goes for Vineyard Wind, the 62-turbine offshore wind farm under construction south of Massachusetts. The three cases — which all challenge the project’s federal permits — are now in front of the United States Court of Appeals for the First Circuit.
How those lawsuits fare will help determine whether the Biden administration can meet its goals to boost renewable power generation while satisfying traditional environmental laws meant to protect wildlife and ecosystems. President Joe Biden has committed to permitting 16 offshore wind projects by the end of this year — a build-out opposed by commercial fishing interests and conservative groups who argue installing wind turbines harm marine ecosystems and endangered species.
“We are in a period where we are testing, in a larger context, how environmental laws are going to be interpreted with regards to renewable projects, wind and solar in particular,” said Pat Parenteau, an emeritus professor at Vermont Law School.
Vineyard faces challenges from a small-scale solar developer, Nantucket residents and commercial fishing interests. Judge Indira Talwani of the U.S. District Court for the District of Massachusetts has dismissed all three — and all plaintiffs appealed. That leaves four appeals to three decisions, as two separate lawsuits by fisherman were consolidated into one case before Talwani.
Opponents allege that the Bureau of Ocean Energy Management failed to comply with a series of laws — including the Endangered Species Act, the Marine Mammal Protection Act and the National Environmental Policy Act — when it permitted the 800-megawatt project in 2021.
The Texas Public Policy Foundation, a conservative think tank that has championed fossil fuel use, is representing commercial fishing interests in one case. Nantucket Residents Against Turbines, another group suing Vineyard Wind, has coordinated with the Caesar Rodney Institute, a conservative think tank whose energy program is led by a former member of former President Donald Trump’s EPA transition team.
That has prompted charges from environmentalists that the lawsuits are being bankrolled by oil companies and other conservative interest groups.
A lawyer for the Nantucket group did not respond to a request for comment. But Robert Henneke, executive director of the Texas Public Policy Foundation, asserted that the permitting of Vineyard Wind was political.
“It is a test of to what extent courts will look the other way or federal agencies will bend or break these environmental protections because of a political priority by the administration,” said Henneke, whose group has expressed doubts over the impact of climate change. “We’re dead center, right on the merits. It violates a number of federal environmental laws that were enacted to prevent this type of rushed offshore infrastructure project that creates risk and harm to the environment.”
Vineyard Wind declined to comment, citing pending litigation. BOEM did not respond to a request for comment.
Biden aims to put the country on a path to build enough offshore wind to power 10 million homes by the end of the decade. Those ambitions have fueled a proliferation of proposals from developers, mostly along the East Coast. One federal estimate concluded more than 3,400 turbines would be installed by 2030 if all developers’ plans come to fruition.
Legal observers said the impact of Talwani’s rulings on future projects remains to be seen. Her decisions varied by case.
In deciding against fishermen in Seafreeze Shoreside Inc. vs. the U.S. Department of the Interior, Talwani ruled that fishermen did not have standing to sue under the National Environmental Policy Act, the Endangered Species Act or the Marine Mammal Protection Act.
Fishermen effectively made an economic argument that they stood to lose money because turbines would crowd them out of their fishing grounds, Talwani found. The problem, she said, is that they needed to prove an environmental harm in order to sue under laws like NEPA or the ESA.
“Plaintiffs have not put forth competent evidence as to an environmental injury, or even an environmental harm that would impact their fishing. Instead, where the gist of their claim is that the physical impediment that project poses will limit their trawling, Plaintiffs’ arguments fails,” Talwani wrote in a 47-page decision.
The judge failed to appreciate how fishermen’s economic fortunes are linked to the marine environment, said Roger Marzulla, a lawyer representing the Responsible Offshore Development Alliance, one of the fishing groups in the case. He noted that RODA has partnered on scientific studies with federal regulators to determine wind’s impact on marine ecosystems.
“The notion that the fishermen don’t care about the quality of the ocean doesn’t make a whole lot of sense,” Marzulla said. “Mind you, we’re talking about the industrialization of thousands of acres of ocean bottom that is going to be dug up and buried in various kinds of construction materials.”
Talwani went further in deciding the merits of the arguments in other cases.
She granted standing to Thomas Melone, a small-scale solar developer and part-time resident of Martha’s Vineyard, to sue under the MMPA. She also granted standing to Nantucket Residents Against Turbines to sue under the ESA. In both cases, the plaintiffs had standing because they had viewed the endangered right whale in the past and had plans to do so in the future, Talwani found.
But she ruled that neither provided evidence that federal regulators had acted arbitrarily or capriciously when it came to considering the project’s impact on right whales. To the contrary, she found regulators had considered the impact on the whale and required a host of measures intended to protect it, including seasonal restrictions on pile driving and a directive to halt construction if any whales were observed in the project area. The Nantucket residents argued that federal regulators did not use the best available science in making their determinations, failing to adequately engage or ignoring studies regarding wind’s impact on the right whale. But Talwani said the opposite was true. Regulators did consider those studies but came to a different conclusion than the challengers, she found.
The plaintiffs might disagree with federal agencies’ conclusions, Talwani wrote in the Nantucket case, “but the court may not second-guess” their determinations.
Her decisions were sometimes biting. When Melone argued that employing protected species observers was insufficient for detecting whales, the judge responded that his argument appeared to be based on his own personal experience on whale watches.
“Plaintiff’s personal experience with binoculars in a recreational setting is insufficient to cast doubt on the reasonableness of this required mitigation measures,” she wrote.
The deference shown to the federal regulators by Talwani could be overturned by the Supreme Court, said Melone, a solar developer with a history of suing large scale renewable projects in New England. He pointed to a ruling expected this summer from the high court, in which the justices appear likely to curtail the deference courts currently afford to federal agencies in interpreting ambiguous laws.
“As for the precise issues in the case, choosing between the whales and offshore wind under current law should be Congress’ job, and should be based upon scientific analysis done before the fact, not after, when it’s too late,” he wrote in an email.
But Parenteau, the Vermont Law School professor, said the Supreme Court — even if it limits the so-called Chevron doctrine — is unlikely to question scientific judgements that are under an agency’s expertise.
The issues of offshore wind and whales is a case in point, he said. Extreme caution is warranted when considering a wind project’s impact on the whale because the species is so threatened.
“But wind turbines aren’t the main threats to the whale. It’s [fishing] lines in the water and vessel traffic,” Parenteau said. “I think the courts are not going to second guess agency judgements about these renewable projects very often.”
‘Impossible to answer’
Joel Eisen, a professor of law specializing in environmental cases at the University of Richmond School of Law, said Talwani’s decisions amounted to a legal hodgepodge. That makes it difficult to determine if future challengers will be able to overturn permits granted to other offshore wind projects, he said.
“It is impossible to answer the question of whether it set a precedent on the East Coast,” Eisen said. “It depends on who they are, what statutes they are suing on, and what facts they are alleging, like whale watching, and what a relevant court thinks about a lot of this.”
Lawsuits have been a scourge to offshore wind in the past, and more are on the horizon. Cape Wind, the first planned offshore wind project in the U.S., was canceled in 2017 after a decade and a half of litigation. The project won many of its court challenges, but opponents succeeded in delaying the project long enough for it to violate the terms of its power contract with Massachusetts utilities.
In more recent years, legal challenges have not prevented offshore wind projects from moving forward. Vineyard Wind began construction in 2021. Its first turbine began generating power earlier this month.
But as more wind projects are permitted, the number of lawsuits has grown.
In New Jersey, Cape May County is challenging the permits for Ocean Wind. A pair of historic preservation groups have filed lawsuits challenging South Fork Wind and Revolution Wind, two projects slated to be built south of Rhode Island. They allege federal regulators violated NEPA and the National Historic Preservation Act in permitting the projects, which will be visible from the community of Newport and Block Island, Rhode Island.
The Vineyard Wind cases would not have any bearing on those challenges, said Claire O’Brien, preservation practice manager at Cultural Heritage Partners, the law firm representing the historic preservation groups.
“Our cases involve different issues,” she said in a statement.