Another Lawsuit Against Vineyard Wind Dismissed

David Creed •

Vineyard Wind's recently completed 3,500-ton substation. Photo by Doug Lindley

Another attempt to stop the Vineyard Wind project southwest of Nantucket has failed.

Federal Court Judge Indira Talwani last Friday dismissed a lawsuit filed by Thomas Melone in July of 2021 that attempted to block the Vineyard Wind and its 62 turbines now under construction. It was the second lawsuit challenging the project to be dismissed, with the first one being rejected back in May.

Melone, the president of various solar energy companies, owns a home in Edgartown and accused the National Marine Fisheries Services (NMFS) of violating the Marine Mammal Protection Act (MMPA) and the Administrative Procedure Act (APA) when issuing an Incidental Harassment Authorization (IHA) to Vineyard Wind for its offshore wind energy project.

“Plaintiff’s argument regarding “old data” relies entirely on information that emerged after the IHA was issued,” Talwani says in the memorandum and order filed on August 4. “Plaintiff has not, and cannot, demonstrate that NMFS was unreasonable in failing to consider reports and studies that did not exist at the time the IHA. To the extent Plaintiff complains that NMFS also failed to consider current population data at the time of issuance, that argument is contradicted by the Record. As such, Plaintiff’s argument that NMFS relied on 'old data' and that such reliance was arbitrary and capricious fails.”

“Plaintiff has not shown that NMFS acted arbitrarily, capriciously, or otherwise unlawfully,” Talwani continued. “Accordingly, NMFS and Vineyard Wind’s motions for summary judgment are granted and Plaintiff’s motion for summary judgment is denied.”

Part of the Vineyard Wind construction. Photo by Doug Lindley

Vineyard Wind, which will include 62 turbines spaced one nautical mile apart, is currently being built in federal waters approximately 15 miles southwest of Nantucket. These turbines will be 853 feet tall, generate 800 megawatts of electricity annually, and supply power to more than 400,000 homes.

The NMFS and Vineyard Wind argued that Melone lacked standing and that they were entitled to summary judgment because they believed the NMFS complied with the MMPA. Melone stated he had standing due to his environmental interest in right whales – arguing that he is entitled to summary judgment and the IHA being vacated because he felt the NMFS acted “arbitrarily, capriciously, and otherwise in violation of law” when issuing the IHA.

An IHA can be issued following a 30-day public review period. Its purpose is to allow activities that may result in only the incidental harassment of a small number of marine mammals. Issuance of an IHA is based on a determination that the number of marine mammals taken by harassment will be small and/or will have a negligible impact on the species or stock of marine mammals in question.

Melone’s camp argued that if there is emerging data that comes to light after the IHA is issued, there is the possibility that the data could prove that the right whale population is at risk because of these turbines and that the NMFS should continue to take new developments into consideration and review the validity of the IHA issuance.

However, the court stated in the order that Melone failed to explain how any documents that came available following the IHA issuance offer distinct or helpful explanations not previously in the record to be considered beforehand

The court did find that there were delays and publication requirements that were not met through the IHA process. It includes the notice of the proposed IHA being issued 29 days late, not requesting public comment on the proposed IHA through newspapers or other forms of news circulation, and the NMFS not disputing that it did not issue the IHA within 45 days, as required, after the close of the public comment period and instead issued it almost two years later.

Melone argued that these violations should lead to the IHA being vacated, however, the court determined that these publication defects amounted to nothing more than a harmless error. Had the defects even been more than that, the court felt the plaintiff did not do enough to prove that vacating the IHA was the appropriate course of action. The court added that they believe the publication errors had little impact on the approval process.

As for the claim by Melone that the IHA issuance violated the MMPA, the court said that the plaintiff did not provide or point to any evidence to support their claim that the Vineyard Wind IHA “impermissibly excludes other Vineyard Wind activities occurring during this same time period that should have been included in the project’s IHA.”

An ongoing whale mortality event involving North Atlantic Right Whales and Humpback Whales has prompted a backlash against President Joe Biden's administration's push for offshore wind energy by numerous groups, including the Nantucket Residents Against Turbines. Those groups have questioned whether the initial survey work associated with the installation of offshore wind farms along the East Coast may be causing whale deaths - and even called on President Biden to launch an investigation.

But according to NOAA Fisheries, “there are no specific links between recent large whale mortalities and currently ongoing surveys for offshore wind development.”

Two years ago, the town of Nantucket negotiated to receive $16 million in restitution for the potential historical, cultural, and economic impacts of Vineyard Wind’s offshore wind farm through a so-called "Good Neighbor Agreement." Cultural Heritage Partners (CHP), the law firm hired by the town to negotiate on offshore wind projects, secured this remediation as part of a lengthy dialogue with Vineyard Wind.

A vessel assisting the Vineyard Wind construction. Photo by Doug Lindley
Another look at the Vineyard Wind substation. Photo by Doug Lindley
Photo by Doug Lindley.
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