A group of Nantucket, Mass., opponents of an 800-MW offshore wind project – Vineyard Wind – have launched a last-ditch attempt to scuttle the $4 billion, 20 years in the planning, wind farm. The project is about 15 miles equidistant from Nantucket and Martha’s Vineyard. It would be the first commercial-scale offshore wind project in the U.S., although offshore wind is common in Europe and Asia.
The Boston Globe last week (Sept. 26) reported, “Nantucket Residents Against Turbines filed its appeal last week in the US Court of Appeals for the First Circuit, after US District Court Judge Indira Talwani in May dismissed its lawsuit, records show.” The local group calls itself ACKRats for short.
The appeal targets the Interior Department’s Bureau of Ocean Energy Management, Commerce Department’s National Oceanic and Atmospheric Administration and National Marine Fisheries Service, Interior Secretary Debra Haaland, Commerce Secretary Gina M. Raimondo, and wind farm developer Vineyard Wind 1 LLC.” The project has all the necessary federal and state permits and could be generating power in 2024.
The Nantucket group asserts that noise from the construction and operation of the project could harm the critically endangered North Atlantic Right Whale, despite the federal and state science agency approvals rejecting those claims. The decision, they charged in the required legalese, was “arbitrary and capricious.
The noise from construction and operation, the local landowners claim, will drive the whales “into higher danger zones, where they can be injured or killed through vessel strikes. The noise itself can cause damage through hearing loss. Given the whales’ strong reliance on hearing, a deaf whale is likely a dead whale.”
The project developers have agreed to halt construction, which began in November 2021, during periods of right whale activity. The University of New Hampshire will be monitoring whale sounds for three years of project operation.
The National Marine Fisheries Service prepared a full, four-volume final environmental impact statement for the project, which Interior’s BOEM relied on before granting a green light for the project.
Vineyard Wind, consisting of 62 13-MW General Electric wind turbines, some as tall as 800 feet, will transmit power through two underground cables to landfall in Barnstable, Mass., where it will connect to the ISO New England grid through an Eversource electrical substation. An operations and maintenance center will be located on Martha’s Vineyard. Copenhagen Infrastructure Partners, a Danish renewable energy developer, is a co-owner along with Avangrid, a subsidiary of Spain’s Iberdrola.
The project has had ups and downs. The developers initially faced opposition from commercial fishermen in Massachusetts and Rhode Island. Vineyard Wind withdrew the application for federal approval in 2020 during opposition from the Trump administration (and Trump has personally railed against wind power). The Biden Interior Department revived and approved it in 2021.
The project developers created a fisheries compensation program, with escrowed funds, to be “overseen by an independent Third-Party Administrator who will manage the claims review and payments processes in collaboration with expert Fishery Advisors representing fixed and mobile gear fisheries.”
What are the chances that the ACKRats will succeed? Jeffrey Porter, a lawyer with the Mintz law firm (founded in Boston with offices also in New York, Los Angeles, San Diego, San Francisco, Toronto, and Washington, D.C.), recently wrote, “There is as much chance that ACKRats will prevail in this appeal as there is that the Boston Red Sox will win the 2023 World Series [The Red Sox will not even make the post season this year – Ed.]. Anyone with a law degree could have predicted Judge Talwani’s ruling against the ACKRats and the First Circuit’s response to this latest plea is just as predictable.”
The reason, Porter said and as federal legal nerds will know, is “because at least for now Federal Courts are required to defer to the decision making of Federal agencies specifically charged with making specific decisions under specific Federal laws unless the decision making is completely indefensible. That most certainly was not the case here.”
Porter is referring to the “Chevron doctrine,” the 1984 Supreme Court decision in Chevron v. National Resources Defense Council. A 2022 National Law Review article explained that Chevron “provides federal agencies with the ability to interpret the statutes they are tasked to administer without heavy-handed court intervention. Under the traditional Chevron analysis, courts will defer to the federal agency when the relevant statute is ambiguous, and the agency’s interpretation is reasonable.”
Many judicial conservatives, include some on the current Supreme Court including Justice Clarence Thomas, would like to deep-six Chevron. But until that happens Chevron remains the law of the land.
–Kennedy Maize
To subscriber to The Quad Report –it’s free – use the email and type “subscribe” in the subject line.
To comment: