The 1st Circuit Court of Appeals on April 24-25 affirmed denial of two challenges to environmental approvals of the Vineyard Wind 1 project under construction off the coast of Massachusetts. 

One of the challenges was brought by a group of Nantucket residents (23-1501), and the other by solar company Allco Renewable Energy and its owner, Thomas Melone (23-1736). 

As the offshore wind industry scales up across the East Coast, opposition groups have filed an array of legal challenges intended to halt its progress. So far, these challenges have failed to stop any projects, with the 1st Circuit’s decisions marking another legal victory for offshore wind developers. (See Opponents Sue to Halt Coastal Virginia Offshore Wind, Another Federal Lawsuit Seeks to Invalidate OSW Approvals.) 

The 806-MW Vineyard Wind 1 project already has multiple turbines in operation and will consist of 62 turbines when complete, potentially by the end of this year.  

The challengers argued that the federal government did not properly evaluate Vineyard Wind’s effects on right whales, an endangered species. Both challenges were denied by the Massachusetts District Court prior to the appeals process. (See Lawsuit Against Vineyard Wind over Threat to Whales Tossed.) 

In biological opinions issued in 2020 and 2021, the National Marine Fisheries Service (NMFS) determined that Vineyard Wind is “not likely to jeopardize the continued existence” of right whales and other endangered species, while determining the project “will have no effect on critical habitat designated” for right whales.  

NMFS did note that the noise associated with pile driving could result in the “harassment” of some right whales but wrote that no right whale injury or mortality is expected from any aspect of the project.  

To mitigate potential impacts, the Bureau of Ocean Energy Management (BOEM) required several mitigation measures in its approval of the project, including restrictions on when Vineyard Wind can conduct pile driving.  

The challenge by the Nantucket residents, initiated in 2021, argued that NMFS’s biological opinion was deficient, and that BOEM’s environmental impact statement violated the National Environmental Policy Act by relying on a deficient biological opinion.  

Allco’s challenge, which also began in 2021, alleged that NMFS erred in issuing Vineyard Wind 1 an Incidental Harassment Authorization. 

Both challenges were heard by a panel of judges on the 1st Circuit entirely nominated by Democrats.  

“NMFS and BOEM followed the law in analyzing the right whale’s current status and environmental baseline, the likely effects of the Vineyard Wind project on the right whale, and the efficacy of measures to mitigate those effects,” wrote Judge William Kayatta in response to the Nantucket residents’ appeal.  

Responding to the Allco appeal, Kayatta wrote “it is clear from the record that NMFS applied its scientific expertise to consider the nature of Vineyard Wind’s activities and the type of harassment expected to occur,” and took no issue with NMFS’s finding that the project would have a “negligible impact” on the right whale species. 

According to the law firm Bracewell, the rulings “mark the first appellate decisions affirming the federal government’s issuance of permits to the Vineyard Wind Project,” and will help set legal precedents that “will shape the trajectory of the emerging offshore wind sector.” 

The 1st Circuit must still hear a pair of pending challenges brought by commercial fishing and seafood organizations, led by the Responsible Offshore Development Alliance and Seafreeze Shoreside, Inc. (23-2051 and 23-1853).