Federal court rejects Nantucket group's appeal of Vineyard wind project

A federal court has rejected the appeal filed by a group of Nantucket residents aimed at stopping the Vineyard Wind offshore wind energy project southwest of the island.

The group ACK For Whales - formerly known as Nantucket Residents Against Turbines - filed the 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 on Wednesday, three U.S. Court of Appeals judges rejected those allegations and affirmed the ruling of the U.S. District Court which had previously dismissed ACK For Whale’s complaint.

“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.”

Read the judges' full decision by clicking here

ACK For Whales told the Current on Thursday that it plans to take the case as far as possible, vowing another appeal to the U.S. Supreme Court. 

"We are very disappointed by the decision, as it comes at the expense of the North Atlantic right whale and at a very precarious time for it, when 93 percent of the remaining 340 population rely on this small area within which the Vineyard Wind and eight additional projects will be located," the group said in a prepared statement. "We firmly believe that the court should not give deference to the federal agencies which are recklessly fast-tracking these projects. We plan to appeal to the Supreme Court of the United States as we believe that this is a landmark case and a significant industrialization of the ocean."

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," said Craig Gilvarg, Vineyard Wind spokesperson. "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.” 

The legal challenge by ACK For Whales - which was founded by island resident Val Oliver and includes board members DiSibio, Ellen Mayo, and Veronica Bonnet - is one of several initiatives by the group to challenge the Vineyard Wind project. Oliver, ACK For Whales' founder, has also sponsored two citizen petitions (Articles 77 and 78) for Nantucket's upcoming Annual Town Meeting on May 7th that ask the Select Board to withdraw from the Good Neighbor Agreement with Vineyard Wind and require the Select Board to seek authorization from voters before entering into any future agreements with offshore wind developers. Both received negative recommendations from the town's Finance Committee.

Vineyard Wind will eventually include 62 turbines spaced one nautical mile apart in federal waters approximately 15 miles southwest of Nantucket. Ten turbines have been completed so far. The company believes the wind farm will generate 800 megawatts of electricity annually, enough to power over 400,000 homes, and claims the project will reduce carbon emissions by more than 1.6 million metric tons per year, the equivalent of taking 325,000 cars off the road annually.

The questions and concerns over whether the survey work and now construction of offshore wind farms are impacting North Atlantic right whales and other marine mammals have grown louder over the past year as Vineyard Wind has put steel in the water.

Critics of offshore wind development, including ACK For Whlaes, have cited ongoing whale mortality events involving North Atlantic right whales and humpback whales, leading to a growing backlash against President Joe Biden's administration's push for offshore wind energy.

However, the National Oceanic and Atmospheric Administration (NOAA) has remained unconvinced there is a connection between the development of offshore wind and the ongoing whale mortality events.

“At this point, there is no scientific evidence that noise resulting from offshore wind site characterization surveys could potentially cause mortality of whales,” NOAA states. “There are no known links between recent large whale mortalities and ongoing offshore wind surveys."