Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Mgmt.
| Decision Date | 17 May 2023 |
| Docket Number | Civil Action 1:21-cv-11390-IT |
| Parties | NANTUCKET RESIDENTS AGAINST TURBINES and VALLORIE OLIVER, Plaintiffs, v. U.S. BUREAU OF OCEAN ENERGY MANAGEMENT, et al., Defendants, and VINEYARD WIND 1 LLC, Intervenor-Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiffs Nantucket Residents Against Turbines (“ACK RATs”) and Vallorie Oliver, a founding member of ACK RATs, bring this action against the U.S. Bureau of Ocean Energy Management (an agency within the U.S. Department of the Interior) and Deb Haaland in her official capacity as Secretary of the Interior (collectively, “BOEM”) and the National Marine Fisheries Service (an agency within the Department of Commerce) and Gina Raimondo in her official capacity as Secretary of Commerce (collectively “NMFS”). Plaintiffs contend that BOEM and NMFS's decisions approving an offshore wind energy project off the coast of Martha's Vineyard and Nantucket (the “Vineyard Wind Project” or the “Project”) was based on inadequate environmental assessments in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 1421, et seq., the Endangered Species Act (“ESA”), 15 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. This action is one of four pending challenges to the Project in this District.[1]
Now before the court are cross-motions for summary judgment by Plaintiffs [Doc. No. 88], Defendants [Doc. No. 95], and Defendant-Intervenor Vineyard Wind 1 LLC (“Vineyard Wind”) [Doc. No. 99].
The following background is drawn from the Administrative Record, as certified by BOEM and NMFS, and is common to all four pending challenges to the Project.
In 2009, BOEM began evaluating the possibility of developing wind energy in the Outer Continental Shelf offshore from Massachusetts pursuant to BOEM's authority under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331, et seq. Final Environmental Impact Statement (“Final EIS”) Vol. II, BOEM0068786 at -9170. In December 2010, BOEM published an initial Request for Interest (“RFI”) regarding wind energy development in the Outer Continental Shelf offshore from Massachusetts. The RFI also invited public submissions on environmental issues. Id.; see also Joint Record of Decision (“Joint ROD”), BOEM0076799 at -6802 (citing 75 Fed.Reg. 82,055 (Dec. 29, 2010)). In response to comments, BOEM reduced the planning area by 50%. Final EIS Vol. II, BOEM0068786 at -9170.
In February 2012, BOEM published a Call for Information and Nominations in the Federal Register to gauge interest in commercial leases for wind energy projects. Id. (citing 77 Fed.Reg. 5821 (Feb. 6, 2012)). BOEM also published a notice of intent to prepare an environmental assessment in connection with potential wind energy leases and site assessment activities offshore from Massachusetts. Id.
In May 2012, BOEM identified a further reduced area for consideration for potential wind energy development (“the Wind Energy Area”) in the Outer Continental Shelf south of Nantucket and Martha's Vineyard, Massachusetts, based on public comments concerning high sea duck concentrations and an area of high-value fisheries. Final EIS Vol. II, BOEM0068786 at -9170. BOEM then prepared an Environmental Assessment, regarding the proposed Wind Energy Area, to guide its leasing. See 2014 Revised Env't Assessment, BOEM0000090 at -118.
In June 2014, BOEM issued its Revised Environmental Assessment concerning the proposed wind energy area. Id. At the time, BOEM concluded leasing and site assessment actions would not significantly impact the environment. Id. at -100.
On June 18, 2014, BOEM published a proposed sale notice and invited public comment on a proposal to sell four wind energy leases in the Wind Energy Area. Final EIS Vol. II, BOEM0068786 at -9171. Following public comment, BOEM published a final sale notice reflecting its intent to sell commercial wind energy leases in the Wind Energy Area, including Lease “OCS-A 0501.” See Final EIS Vol. II, BOEM0068786 at -9171, -9235.
In January 2015, BOEM conducted a competitive lease sale for Lease OCS-A 0501 (the “Lease”), ultimately awarding the Lease to Offshore MW, LLC, later renamed Vineyard Wind 1, LLC. Final EIS Vol. II, BOEM0068786 at -9171. The lease area covers 166,886 acres in the Outer Continental Shelf (the “Lease Area”). Id.; April 1, 2015 Lease, BOEM0000764 at -0776. The Lease became effective April 1, 2015. Id. at BOEM0000764.
The Lease granted Vineyard Wind the right to seek approval for a Site Assessment Plan (“SAP”) and a Construction Operations Plan (“COP”). Id. On November 22, 2017, Vineyard Wind submitted a Site Assessment Plan (“SAP”) to BOEM for the Vineyard Wind Lease Area. May 10, 2018 Approval of SAP, BOEM0013366. On May 10, 2018, BOEM approved Vineyard Wind's SAP, subject to numerous conditions, including for the protection of cultural resources, marine mammals and sea turtles, and implementation of mitigation measures. Id.
On December 19, 2017, Vineyard Wind submitted to BOEM for consideration under OCSLA a proposed COP for the Project to be constructed in 65,296 acres of the Vineyard Wind Lease Area, referred to as the Wind Development Area or “WDA.” Dec. 19, 2017 COP Submission Letter, BOEM0006004-06; December 19, 2017 COP BOEM0001361-6003. On March 30, 2018, BOEM published a notice of its intent to prepare an EIS for the COP. 83 Fed.Reg. 13,777 (Mar. 30, 2018), BOEM0012028. The notice described the Project and invited the public to participate in public comment and public scoping meetings BOEM later conducted. Id.; BOEM012406-13078 (April 2018 meeting transcripts)). On December 7, 2018, BOEM published a notice of availability of the Draft EIS in the Federal Register. 83 Fed.Reg. 63,184 (Dec. 7, 2018), BOEM0034694. As summarized in the notice, the Draft EIS analyzed the proposed COP and several alternatives, including different locations for cable landfall, reduction in project size, several options for turbine layout, and a no-action alternative. Id. The notice invited public comment and/or participation at public hearings BOEM later conducted. Id.; see also BOEM035872-36269 ().
Vineyard Wind submitted numerous updates to the proposed COP over the course of BOEM's review. See Final EIS Vol. I, BOEM0068434 at -8440 (listing prior iterations of the COP). The updates addressed comments from BOEM, modified the Project design envelope, and accounted for the possibility of higher capacity wind turbine generators, which would ultimately reduce the number of wind turbines to be installed and reduce the total Project area. See, e.g., Jan. 22, 2021 Letter from Vineyard Wind to BOEM, BOEM0067698-7701.
On June 12, 2020, BOEM published a notice in the Federal Register that the supplement to the Draft EIS (“Supplemental Draft EIS”) was available on BOEM's website, invited public comment in connection with the notice and participation at public meetings BOEM later held virtually. 85 Fed.Reg. 35,952 (June 12, 2020), BOEM0057578; June-July 2020 Public Meeting Transcripts, BOEM058001-59241. BOEM prepared the Supplemental Draft EIS “in consideration of the comments received during the [NEPA] process and in connection with cooperating agencies.” Supplemental Draft EIS, BOEM0056950 at -6954. In particular, BOEM expanded its analysis of the reasonably foreseeable effects from cumulative activities for offshore development, included previously unavailable fishing data, considered a new transit lane alternative through the WDA, and addressed changes to the proposed COP since publication of the Draft EIS. Joint ROD, BOEM0076799 at -6803-04; 85 Fed. 35,952 (June 12, 2020), BOEM0057578; Supplemental Draft EIS, BOEM0056950 at -6954. The transit lane alternative that was included was in response to a proposal from the Responsible Offshore Development Alliance for a northwest/southeast transit corridor to facilitate transit for fishing vessels from southern New England to fishing areas. Supplemental Draft EIS, BOEM0056950 at -6958.
On December 1, 2020, Vineyard Wind notified BOEM that it was withdrawing the proposed COP from review in order to conduct a technical and logistical review of the turbines selected for inclusion in the final Project design. Dec. 1, 2020 Vineyard Wind Letter to BOEM, BOEM0067649-50; see also Final EIS Vol. I, BOEM0068434 at -8440 n.3. Vineyard Wind's notice of withdrawal indicated that Vineyard Wind intended to rescind the withdrawal upon completion of its due diligence review. Dec. 1, 2020 Vineyard Wind Letter to BOEM, BOEM0067649-50. On December 16, 2020, following Vineyard Wind's notification that it was withdrawing the COP pending further technical and logistical review, BOEM published a notice in the Federal Register stating that Fed.Reg. 81,486 (Dec. 16, 2020), BOEM0067694.
On January 22, 2021, Vineyard Wind notified BOEM that Vineyard Wind had completed its review and “had concluded that the proposed turbines did not fall outside of the project design envelope being reviewed in the COP” and requested that BOEM resume review of the COP, most recently...
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