The First Circuit Court of Appeals has finally ended the Nantucket Residents Against Turbines' lawsuit against the United States Bureau of Ocean Energy Management, the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service, the Department of the Interior, the Department of Commerce and Vineyard Wind. The NIMBYs at ACK RAT claimed that the Federal Government failed to sufficiently consider the potential effect of the Vineyard Wind project on the most critically endangered Right Whale.
ACK RAT filed its complaint against the Federal Government two years and eight months ago. Since then, armies of lawyers on both sides of the case have done what lawyers do, including arguing motions for summary judgment before Federal District Court Judge Indira Talwani and then arguing over Judge Talwani's decision in favor of the United States in the First Circuit Court of Appeals.
Though many pages of briefs and judicial opinions have been written in this case since August of 2021, the end was never in doubt. As I wrote in August of 2021, in order to prevail here the NIMBYs of ACK RAT would need to show not just that the Federal agencies were wrong to green light the Vineyard Wind project but that they were arbitrary and capricious in doing so. Court of Appeals Judge Kayatta's thirty-six-page opinion explains why the voluminous record supporting the Federal agencies' decisions supports the opposite conclusion.
So the Vineyard Wind project will continue to generate clean energy for Massachusetts. But we should still be paying attention to the damage caused by lawsuits like this one. Because of such lawsuits, renewable energy projects take longer, and cost more, than they should. In the meantime, Massachusetts is less and less likely to meet its Greenhouse Gas reduction mandates.
Under Governor Healey's, Climate Chief Hoffer's, and EEA Secretary Tepper's leadership, Massachusetts is exploring how our state government might streamline the permitting of the infrastructure necessary to change the way we power and heat ourselves. Whatever the Healey-Driscoll Administration can accomplish will be insufficient without Federal legislative action.
As I've said many times before, we either believe what the scientists are telling us about the effect Greenhouse Gases are having on our planet or we don't. Believing them has caused the Federal and State Governments to spend hundreds of billions of dollars to expedite a transition to renewable energy, including energy generated by wind.
Even with once in a lifetime financial support from the Federal Governments, renewable energy projects are too often challenged by the time and expense it takes to permit them, and then defend the permits granted against inevitable challenges by NIMBYs and anti “energy discrimination” folks like those at the Texas Public Policy Foundation. It is past time for Congress to address this challenge.
Nantucket Residents Against Turbines and lead plaintiff Vallorie Oliver turned to the First Circuit in June 2023, after U.S. District Judge Indira Talwani issued summary judgment for the government and rejected the residents' sparring motion arguing that the Bureau of Ocean Energy Management and National Marine Fisheries Service acted "arbitrarily and capriciously" in their review of the Vineyard Wind project's impact on endangered species like the right whale. The agencies, in response, defended their approval of the project, telling the appellate court the extensive record shows they thoroughly understood the status of the endangered whale and considered how the project's construction and operation could impact the species, thereby rendering its findings and conclusions reasonable and owed deference by the court.
unknownx500
