Nantucket Group Fighting Vineyard Wind Will Take Case To U.S. Supreme Court

After its arguments against the Vineyard Wind project were rejected by a federal judge in April, the Nantucket group ACK 4 Whales will attempt to take its case to the U.S. Supreme Court.

“There are no do-overs when the last whale is killed off,” said Val Oliver, president of ACK 4 Whales.

“We will be seeking a writ of certiorari to the Supreme Court to ask for the reversal of the First Circuit’s legal errors made in our case,” Oliver added. “We believe this is the first cert. petition being filed in the wake of the Supreme Court's decision in Loper Bright to challenge offshore wind development..”

In its previous lawsuit, ACK 4 Whales had alleged that the federal agencies that permitted the Vineyard Wind project violated the Endangered Species Act by concluding that the project's construction likely would not jeopardize the critically endangered North Atlantic right whale. The group also asserted that the Bureau of Ocean Energy Management had violated the National Environmental Policy Act by relying on a “flawed analysis” from the National Marine Fisheries Service.

But in April, three U.S. Court of Appeals judges rejected those allegations and affirmed the ruling of the U.S. District Court which had previously dismissed ACK 4 Whale’s complaint.

“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 judges William Kayatta, Sandra Lynch, and Gustavo Gelpí wrote in their decision. “Moreover, the agencies' analyses rationally support their conclusion that Vineyard Wind will not likely jeopardize the continued existence of the right whale. We therefore affirm the judgment of the district court."

The chances of the U.S. Supreme Court hearing ACK 4 Whales' case are slim. According to the federal government, "Federal courts of appeals routinely handle more than 50,000 cases each year. Ten percent or fewer of those decisions are appealed to the Supreme Court, which in turn hears oral arguments in fewer than 100 cases annually. Thus, the vast majority of courts of appeals decisions are final, and they are binding on lower courts within the same circuit."

Still, ACK 4 Whales is forging ahead with its legal challenge even as Vineyard Wind has 10 of its turbines now fully operational, and a total of 18 constructed.

“ACK 4 Whales was the first suit brought to protect endangered species from offshore wind development and hold government agencies to their obligation to follow important environmental laws,” said ACK 4 Whales board member Amy DiSibio, “And we think this issue is so important to the Island, its people, and its environment that we continue to pursue our legal remedies, all the way to Supreme Court.”

Back in April, Vineyard Wind, owned by Copenhagen Infrastructure Partners and Avangrid Renewables (a subsidiary of the Spanish energy giant Iberdrola), stated that the review by the federal agencies had been “rigorous and thorough.”

“We are pleased that the U.S. First Circuit Court of Appeals has affirmed the prior rulings issued by the District Court, acknowledging the rigorous and thorough administrative review that the Vineyard Wind 1 project underwent over the last many years," said Craig Gilvarg, Vineyard Wind spokesperson. "We commend the efforts of the U.S. Department of Justice, the federal government, and the Vineyard Wind 1 project team to defend the nation’s first commercial-scale offshore wind project, which is creating thousands of jobs and currently delivering clean power to Massachusetts homes and businesses.”

Vineyard Wind will eventually include 62 turbines spaced one nautical mile apart in federal waters approximately 15 miles southwest of Nantucket. Ten turbines have been completed so far. The company believes the wind farm will generate 800 megawatts of electricity annually, enough to power over 400,000 homes, and claims the project will reduce carbon emissions by more than 1.6 million metric tons per year, the equivalent of taking 325,000 cars off the road annually.

The questions and concerns over whether the survey work and now construction of offshore wind farms are impacting North Atlantic right whales and other marine mammals have grown louder over the past year as Vineyard Wind has put steel in the water.

Critics of offshore wind development, including ACK For Whlaes, have cited ongoing whale mortality events involving North Atlantic right whales and humpback whales, leading to a growing backlash against President Joe Biden's administration's push for offshore wind energy.

However, the National Oceanic and Atmospheric Administration (NOAA) has remained unconvinced there is a connection between the development of offshore wind and the ongoing whale mortality events.

“At this point, there is no scientific evidence that noise resulting from offshore wind site characterization surveys could potentially cause mortality of whales,” NOAA states. “There are no known links between recent large whale mortalities and ongoing offshore wind surveys."