By Steve Haner
A federal district judge in Massachusetts has rejected an effort to stop an offshore wind project near Nantucket Island on the basis of danger to whales, apparently the first court test of similar claims being raised against wind turbine proposals along the U.S. eastern seaboard, including here in Virginia.
On May 17, U.S. District Judge Indira Talwani granted a motion for summary judgement to the federal agency that approved the Vineyard Wind One project. With a planned 84 turbines, the project is about half the size of Dominion Energy Virginia’s planned project off Virginia Beach. Both are just the first phases of larger planned buildouts.
Plaintiffs, mainly a group of residents of the islands near the project, had also cross-filed for summary judgement and that motion was denied. Other court challenges to the project, including one brought by fishing industry interests claiming potential economic harm, are pending, but work on the project has not stopped. Major turbine components are starting to arrive for work to begin.
The same judge is hearing the other cases, with the two from fishing interests now combined.
Judge Talwani’s 52-page opinion reviews and rejects the various ways plaintiffs alleged that the National Marine Fisheries Service and the Bureau of Ocean Energy Management violated the Endangered Species Act (ESA) and the National Environmental Policy Act. She accepted the government’s claims that planned mitigation efforts will protect the marine mammals and the harassment they are expected to suffer should not cause whale fatalities.
She also rejects the plaintiff’s claims they themselves would suffer “emotional distress” because of future problems for the whales, which they have enjoyed watching from their island homes. The North Atlantic Right Whale is a listed endangered species, down to less than 400 individuals, which migrate from northern to southern U.S. waters for breeding.
The final environmental impact statement for the Vineyard Wind proposal was issued in May 2021, followed by approval of the developer’s construction and operation plan in July of that year. Dominion recently reported to the State Corporation Commission that it expects those steps to happen on its project by the end of this year. It is the “record of decision” from BOEM that would be the focus of any similar litigation against its project.
When the suit was filed it was reported here as a possible weather gauge for similar challenges to Dominion, which remain under consideration. Judge Talwani’s comprehensive (call it a slam dunk) opinion, if nothing else, raises even higher the hurdle such a challenge would need to surmount. Whether the Nantucket plaintiffs plan to appeal has not been reported.