Embattled Vineyard Wind project may face SCOTUS scrutiny over whale impact

Oct 1

Jack Aylmer Energy Correspondent

By Jack Aylmer (Energy Correspondent), Zachary Hill (Video Editor)

An offshore wind farm that scattered debris into the Atlantic Ocean this summer is now at the center of a high-stakes legal battle that could be heading to the U.S. Supreme Court. A group of Nantucket residents with the organization ACK for Whales is challenging the federal government’s approval of the Vineyard Wind project, arguing it threatens the survival of the endangered North Atlantic right whale.

“We are optimistic that the Supreme Court will grant review of the important issue in this petition regarding an agency’s abrogating its obligations to the right whale under the Endangered Species Act,” Nancie Marzulla, ACK For Whales’ counsel, said.

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The dispute dates back three years, with ACK for Whales asserting that the National Marine Fisheries Service (NMFS) ignored aspects of the Endangered Species Act. Specifically, the group claims the agency did not properly assess the potential impact of the wind farm on the endangered North Atlantic right whale population.

Vineyard Wind, the project developer, has countered that the project underwent a “rigorous and thorough” review process to ensure environmental compliance.

Under the Endangered Species Act, the NMFS is required to issue a biological opinion on how projects, such as offshore wind farms, might affect endangered species.

According to ACK for Whales, the agency’s analysis only considered the impact of a small number of turbines, despite plans for the agency to approve the installation of over 300 additional turbines in the future.

The NMFS itself has acknowledged that right whales face “a high risk of extinction” and “the loss of even one individual a year” could “reduce the likelihood of species recovery.”

ACK for Whales argues that this analysis was ignored when the federal government approved the Vineyard Wind project, leaving the species vulnerable to harm from the expanding turbine installations.

In addition to the environmental concerns, the group points to a blade failure at the wind farm this past summer, which caused fiberglass debris to spill into the Atlantic Ocean and wash up on surrounding beaches.

Val Oliver, the founding director of ACK For Whales, said “the disastrous blade catastrophe in July — not to mention the evidence of grave harm to an endangered species — makes clear the cost of the government’s decision to ignore its own laws.”

“The government tried to speed its pet political projects forward and gamed its ‘analysis’ so it could ignore the lethal threats to right whales,” Oliver added.

After a U.S. First Circuit Court of Appeals ruling in April dismissed the group’s legal challenge, ACK for Whales is now petitioning the Supreme Court to hear the case. It remains uncertain whether the nation’s highest court will agree to take it up.

Tags: Climate Change, Offshore wind farms, Renewable energy, Vineyard Wind, Whales, Wind energy, Wind farms

Jack Aylmer

THE OFFSHORE WIND FARM THAT SPILLED DEBRIS INTO THE ATLANTIC OCEAN THIS SUMMER IS AT THE CENTER OF A LEGAL BATTLE THAT COULD BE HEADING TO THE SUPREME COURT.

A GROUP OF NANTUCKET RESIDENTS ARE BEHIND THE EFFORT

THAT HAS BEEN THREE YEARS IN THE MAKING-

THEIR ORGANIZATION, ACK FOR WHALES, SAYS THE FEDERAL GOVERNMENT IGNORED ASPECTS OF THE ENDANGERED SPECIES ACT IN THEIR DEVELOPMENT OF THE VINEYARD WIND PROJECT OFF THE COAST OF MASSACHUSETTS.

DEVELOPERS CONTEND THE REVIEW PROCESS WAS RIGOROUS AND THOROUGH.

BEFORE SOMETHING LIKE AN OFFSHORE WIND FARM CAN BE BUILT-

THE NATIONAL MARINE FISHERIES SERVICE IS REQUIRED UNDER THE ENDANGERED SPECIES ACT TO ISSUE A BIOLOGICAL OPINION ON THE IMPACT IT WILL HAVE ON NEARBY THREATENED ANIMALS.

BUT ACK FOR WHALES ARGUES THEY ONLY CONSIDERED THE EFFECTS OF WHAT A HANDFUL OF OFFSHORE WIND TURBINES WOULD HAVE ON THE ENDANGERED RIGHT WHALE POPULATION.

EVEN THOUGH THE AGENCY WAS ALREADY SET TO APPROVE OVER 300 ADDITIONAL TURBINES-

IN ITS OWN WORDS, THE NATIONAL MARINE FISHERIES SERVICE HAS SAID THE LOSS OF EVEN ONE RIGHT WHALE A YEAR MAY REDUCE THE LIKELIHOOD OF SPECIES RECOVERY.

AN ANALYSIS THAT ACK FOR WHALES CLAIMS WAS DISREGARDED WHEN THE AGENCY INTENTIONALLY EXCLUDED THE POTENTIAL HARM CAUSED TO THEM BY HUNDREDS OF MORE TURBINES.

THE GROUP SAYS A BLADE FAILURE AT THE WIND FARM OVER THE SUMMER THAT CAUSED FIBERGLASS DEBRIS TO WASH UP ON SURROUNDING BEACHES FOR WEEKS QUOTE-

MAKES CLEAR THE COST OF THE GOVERNMENT’S DECISION TO IGNORE ITS OWN LAWS.

THEIR LEGAL CHALLENGE OF THE VINEYARD WIND PROJECT WAS MOST RECENTLY DISMISSED BY THE U.S. FIRST CIRCUIT COURT OF APPEALS IN APRIL-

SO NOW THESE NANTUCKETERS ARE FILING A PETITION WITH THE NATION’S HIGHEST COURT TO HEAR THEIR CASE.

BUT WHETHER OR NOT SCOTUS DECIDES TO TAKE IT UP STILL REMAINS TO BE SEEN.