NANTUCKET, Mass.--(BUSINESS WIRE)--Nantucket Residents Against Turbines (ACK For Whales), the grassroots Nantucket group fighting to prevent environmental ruin caused by offshore wind development (OSW), has asked the Supreme Court to hear its appeal of a lower court decision allowing federal agencies to disregard the Endangered Species Act in their rush to approve OSW projects.
The petition asserts the U.S. 1st 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 against ACK For Whales’ challenge to Vineyard Wind’s giant turbines off Nantucket.
“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,” said Vallorie Oliver, president of ACK For Whales. “The government tried to speed its pet political projects forward and gamed its ‘analysis’ so it could ignore the lethal threats to Right Whales.”
In April 2024, the 1st Circuit upheld a district court decision to dismiss the ACK For Whales suit, claiming that it had to defer to the federal agencies’ interpretation of the ESA’s requirements.
“The 1st Circuit erroneously rejected ACK For Whales’ arguments,” said Nancie Marzulla, ACK For Whales’ counsel. “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,” Marzulla added.
The 1st Circuit’s analysis and holding conflicts with holdings by the 9th and D.C. Circuit Courts of Appeals. The ACK For Whales case is the first OSW case to reach the Supreme Court.
The NMFS’ Unlawful Interpretation of the Law
The ESA requires NMFS to issue a biological opinion as to the potential harm a project poses to endangered or threatened species.
Section 7 of the ESA requires NMFS and Bureau of Ocean Management (BOEM) analysis to use “the best available scientific and commercial data available.”
But NMFS created its own unlawful exception to that requirement, even though its and BOEM’s own analyses admitted OSW “would introduce or further contribute to stressors that affect” the Right whales and “the loss of even one individual a year . . . may reduce the likelihood of species recovery.”
Despite this, NMFS “intentionally excluded” from consideration the cumulative impact of hundreds of turbines in the Right whales’ habitat, only “considered” the impact of a handful of turbines even though BOEM had already issued 25 OSW leases, and in its own documents admits it deliberately ignored the impact of 316 other turbines that it was approving.
When it did this, NMFS failed to comply with Section 7’s requirements to use the “best available scientific and commercial data available.”
Since NMFS began ignoring its Section 7 requirements, more than a dozen species have become extinct. There are approximately 338 Right Whales left in the world and only 70 breeding females.
The White House said in March 2021 that the Vineyard Wind project is only the first of the government’s “coordinated steps” to construct about 30 wind turbine projects along the Atlantic seaboard, that, when built out, will contain thousands of turbines covering millions of acres of federal submerged lands.
ACK For Whales filed suit in Massachusetts District Court in August 2021, asserting NMFS and BOEM violated federal law by approving Vineyard Wind’s project without adhering to the ESA and other federal laws.
