In Vineyard Wind Case DOJ Recognizes Possibility of Informational Injury Standing to Sue

Earlier this week the Department of Justice filed a motion to dismiss a solar developer's legal challenge to the Vineyard Wind project.  That motion to dismiss is a multifaceted attack on the plaintiff's standing to mount his challenge.

Certain of the defects of the plaintiff's complaint that DOJ asserts are fatal would seem to be easily fixed by a better worded complaint, or perhaps a different plaintiff.  One example is DOJ's suggestion below that this particular plaintiff doesn't care enough about right whales to be harmed by their peril.  Other plaintiffs in other cases have successfully asserted that just such a concern about whales is sufficient harm to confer standing to sue but with a deeper discussion of their concerns.

Other defects have to do with the essence of what anyone, however sympathetic, can assert as harm that can be redressed in Federal Court. 

One type of harm that may, or may not, be sufficient to keep one in court is so called "informational injury".  Last fall a Ninth Circuit panel found that "informational injury", the injury allegedly suffered by a member of the public owing to someone else's failure to provide environmental permit information to the Government, is sufficient to confer upon that member of the public standing to have a Federal Court redress that alleged injury.  Other Circuits say otherwise.  It is a very real question what the conservative majority of the United States Supreme Court might say about all of that.

In its Vineyard Wind motion to dismiss, DOJ seems to admit that informational injury might be a thing but it goes on to say that it is only sufficient to confer standing when there is a complete absence of required information, not if the information provided is only allegedly deficient.  DOJ goes on to say that the plaintiff in this case only alleged the latter and that isn't enough.

Motions to dismiss are a tall order but DOJ has thrown everything but the kitchen sink at this one.   Here's hoping the Judge sees things its way.