Supreme Court Declines To Hear Challenge Of Vineyard Wind

The U.S. Supreme Court has declined to hear the challenge of Vineyard Wind brought by the Nantucket-based nonprofit ACK For Whales, effectively ending the group's legal effort to stop or delay the wind farm under construction southwest of the island.

The effort to bring its case to the nation's highest court was a long shot - as the U.S. Supreme Court accepts only 2 percent of the 7,000 cases brought to it each year - and on Monday the court informed ACK For Whales that it had declined to hear its petition for certiorari.

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.

Two lower courts had previously dismissed the case, and the U.S. Supreme Court's decision on Monday brings ACK For Whales' legal challenge of the Vineyard Wind project to an end.

“Clearly, we are disappointed, but the reality is that statistically our chances were very small," ACK for Whales president Vallorie Oliver said. "They only accepted two cases, 300 were denied. For that reason we are not reading too much into that denial."

However, the nonprofit announced Monday that its quest to stop the development of offshore wind farms off Nantucket would continue. ACK For Whales has filed two Notices of Intent to sue the Department of Interior and other federal agencies for allegedly violating federal laws intended to protect the environment and endangered species in the permitting of New England Wind, the massive wind farm planned for the lease areas directly southwest of Vineyard Wind.

“New England Wind is an existential threat to our environment and while we are disappointed by the Court’s decision to not hear our appeal, we’re not going to stop fighting for the environment,” ACK for Whales president Vallorie Oliver said. "Because this issue is extremely important, we are moving forward and filing notices of intent to sue as we speak with respect to New England Wind, another project that falls under the Good Neighbor Agreement."

With respect to its original challenge of Vineyard Wind that was rejected by the U.S. Supreme Court on Monday, 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. But in April 2024, three U.S. Court of Appeals judges rejected those allegations and affirmed the ruling of the U.S. District Court, leading the nonprofit to petition the U.S. Supreme 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,” 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."

Vineyard Wind did not immediately respond to a request for comment regarding the U.S. Supreme Court's decision.

While the project remains under a suspension order by the federal government that was issued following the blade failure in July 2024, the order has since been modified multiple times to allow Vineyard Wind to resume most construction activities. While the offshore wind developer is still prohibited from generating any power, the construction of turbine towers and nacelles resumed last fall, and the Bureau of Safety and Environmental Enforcement allowed the installation of new blades on a case-by-case basis. Following the most recent pile-driving effort, which began in late October, Vineyard Wind completed the installation of all 62 offshore monopile foundations by the end of December 2024.