Nantucket Group Takes Challenge Of Vineyard Wind To U.S. Supreme Court

Three years after the Nantucket-based group ACK For Whales first sued to stop the Vineyard Wind project, its legal challenge of the offshore wind project is headed to the U.S. Supreme Court.

After its arguments were rejected by lower courts, ACK For Whales on Monday formally petitioned the U.S. Supreme Court to take up the case.

The petition asserts that the U.S. 1^st Circuit Court of Appeals wrongly allowed the National Marine Fisheries Service (NMFS) to ignore the Endangered Species Act’s (ESA) requirement to use “the best available scientific and commercial data available” when it ruled in April against ACK For Whales’ challenge of Vineyard Wind.

"I have hope," said Val Oliver, the founding director of the non-profit ACK For Whales, formerly known as Nantucket Residents Against Turbines. "In light of the recent Chevron decision, we think we have a really good chance. That was about government overreach and that is what this (Vineyard Wind) has felt like since the beginning: go, go, go, and we'll figure it out as we go. That's just not responsible."

Oliver was referring to the 6-3 U.S. Supreme Court decision in June 2024 that struck down the so-called Chevron doctrine, and sharply curtailed the power of federal agencies to interpret the laws they administer.

While the July 13 blade failure at the Vineyard Wind farm is not something that will be considered by the U.S. Supreme Court if it decides to take the case, the incident is mentioned in ACK For Whales' petition, and the project remains suspended by the federal government as the Bureau of Safety and Environmental Enforcement continues its investigation.

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

ACK For Whales filed an appeal last September with the First Circuit of the U.S. Court of Appeals, seeking to overturn the May 2023 decision of U.S. District Court judge Indira Talwani, who dismissed the group’s original complaint. ACK For 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 2024, three U.S. Court of Appeals judges rejected those allegations and affirmed the ruling of the U.S. District Court.

“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."

That conclusion was erroneous, ACK For Whales stated in its petition to the Supreme Court, and the federal agencies charged with reviewing the project had failed to account for the cumulative impacts on right whale of Vineyard Wind combined with the 30 other offshore wind projects planned along the East Coast totaling more than 1,400 turbines. 

“The 1^st Circuit erroneously rejected ACK For Whales’ arguments,” said Nancie Marzulla, ACK For Whales’ attorney. “The panel sidestepped the ESA requirements by deferring to the agencies. In its Loper Bright decision, the Supreme Court said courts and judges decide legal interpretations, not marine biologists. 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."

While ACK For Whales' may be optimistic about its chances of being heard by the high court, the odds that the Supreme Court justices will accept the case are exceedingly slim. Of the 7,000 cases that U.S. Supreme Court is asked to review each year, only 100 to 150 of them - about 2 percent - are accepted.

Vineyard Wind spokesman Craig Gilvarg did not return a message seeking comment about ACK For Whales' petition to the U.S. 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," Gilvarg said at the time. "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.”