Supreme Court may consider challenge to Nantucket offshore wind project opponents say harms whales

A small Massachusetts-based nonprofit has taken its fight against offshore wind development to the Supreme Court. Nantucket-based ACK for Whales argues that the increase in whale mortality is directly tied to offshore wind development.

The group is challenging the federal approval of an offshore wind farm off the coast of their island, arguing that in permitting the project, federal agencies didn’t properly consider the cumulative impact of multiple projects planned for the area on endangered whales. 

The federal government responded to ACK for Whale’s petition earlier this month, and ACK responded to the Department of Justice’s arguments on Dec. 20. 

In 2021, ACK For Whales sued the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management over its approval of "Vineyard Wind," a 62-turbine wind farm off the coast of Nantucket. 

Chevron deference

A district court dismissed the lawsuit, and in April 2024, the U.S. Court of Appeals for the First Circuit upheld the district court’s decision, ruling that the court had to defer to the federal agencies’ interpretation of the Endangered Species Act (ESA) requirements. This was prior to the ruling in Loper Bright Enterprises v. Raimondo, which overturned the "Chevron deference" that allowed broad latitude in interpreting laws when Congress hasn’t provided specific guidelines.

The decision in Loper Bright is giving ACK for Whales hope the Supreme Court may review the First Circuit’s ruling. Their petition, which was filed in September, argues that the agencies, when they approved Vineyard Wind, didn’t consider the cumulative impacts of other planned projects on the critically endangered North Atlantic right whale, which the petitioners argue violated the ESA. 

In its response filed earlier this month, the Department of Justice explains that BOEM concluded that the project wasn’t likely to jeopardize the right whales’ continued existence, which included a number of mitigation measures for their protection. The DOJ conceded that the conclusion was based solely on the impacts of Vineyard Wind alone, because that is the only project that BOEM was seeking to approve. 

However, the DOJ continues, this doesn’t mean the cumulative impacts of multiple offshore wind projects aren’t being considered in the permitting process. Each time a project seeks approval, an “environmental baseline” of factors that impact an endangered species will be considered, and this baseline is updated over time as new projects come online. However, future offshore projects are not considered cumulative impacts under the ESA, the DOJ explains, but state or private activities are. 

"convoluted and contradictory"

The DOJ also argues that the First Circuit’s decision is correct and doesn’t conflict with the decisions of another court, and ACK for Whales is raising a new challenge to the definition of “cumulative impacts” in the ESA regulations that they didn’t raise in the lower court case. The DOJ argues that the Supreme Court shouldn’t review the First Circuits' decision. 

In its response to the DOJ’s position, which was filed last week, ACK for Whales contends the federal government’s position is convoluted and contradictory. 

“NMFS absurdly argues that agency officials, in preparing a biological opinion for a project, must ignore information about impacts on endangered species from other offshore wind turbine projects that are planned and in various stages of development and governmental review. Perhaps even more bizarrely, NMFS contends that, in preparing a biological opinion for a project, it must consider the cumulative impacts of planned state and local projects but ignore the impacts of planned federal projects,” the brief argues. 

The group also argues that, even though the petition to the high court focuses on the failure of the permitting agency to consider cumulative impacts, it doesn’t render the petition unworthy of review. 

The case was scheduled for a justices’ conference on Jan. 10, where they will consider whether they will grant certiorari.