Federal judges appeared skeptical Thursday of a legal challenge by fishing industry groups against Vineyard Wind, the nation’s first large-scale offshore wind project.
In back-to-back oral arguments before the 1st U.S. Circuit Court of Appeals, Seafreeze Shoreside and the Responsible Offshore Development Alliance respectively urged a three-judge panel to reverse lower court rulings upholding approvals for the project.
A lower court “misread the law,” said Theodore Hadzi-Antich, a senior attorney for the Texas Public Policy Foundation representing Seafreeze Shoreside, referring to a 2023 ruling from the U.S. District Court for the District of Massachusetts in favor of Vineyard Wind.
The project off the coasts of Martha’s Vineyard and Nantucket in Massachusetts has been under renewed scrutiny in the past week after a portion of a turbine blade broke off, prompting a freeze on installation work.
The two cases appear to be following a similar pattern to previous legal challenges of the offshore wind industry. Judges have struck down lawsuits, including against Vineyard Wind, because groups challenging approvals for projects did not do enough to prove they had suffered harm from offshore development.
The 1st Circuit panel of judges, all appointed by President Joe Biden, pressed the fisheries groups to explain how they had standing to make claims against Interior’s Bureau of Ocean Energy Management.
They also questioned the substance of the challengers’ arguments that the project would affect the safety of commercial fishing vessels and that its construction would harm fish species and endangered species such as the North Atlantic right whale.
Judge Seth Aframe, who was confirmed to the court just two months ago, noted that BOEM’s job was to consider how to address the risks of a new project, but not to entirely eliminate risk.
“For maximum safety, it will always be safer to not do [the project], but that can’t be the answer, right?” he said.
Aframe noted that BOEM had taken steps to address concerns about the project, such as increasing the spacing of turbines and changing their direction.
“It does seem like there was an analysis of safety. You might not agree with it, but there was an analysis,” he said.
Hadzi-Antich said the Outer Continental Shelf Lands Act required the agency to ensure renewable energy projects meet a variety of requirements, including safety and protection of the environment.
He said Judge Indira Talwani, an Obama-appointed judge on the Massachusetts federal district court, improperly read the statute in her 2023 ruling, which gave the agency discretion to balance those different requirements.
Justice Department attorney Thekla Hansen-Young pushed back on the challengers’ National Environmental Policy Act claims that construction activities would smother fish larvae, a claim Aframe had seemed sympathetic to.
The commercial fishermen would have a claim if they actually had an interest in protecting the fish, but they want healthy fish “so they can kill the fish,” Hansen-Young said.
“There are several cases where various courts have held that interests in extracting resources are not environmental, they are commercial,” she said.
The 1st Circuit judges also appeared skeptical of claims brought by the Responsible Offshore Development Alliance (RODA).
Judge Lara Montecalvo pressed for more detail on how RODA had an interest in the fate of right whales. The group had claimed that the health of the species was important for maintaining the overall marine ecosystem.
Roger Marzulla, a private attorney for RODA, said the organization had worked with the federal government to craft protections for the whales.
“I don’t think your interest in the whale is sufficient,” said Aframe to Marzulla.
The judges also appeared unconvinced by claims that BOEM had made procedural errors when it took steps to supplement its biological opinion for the project, a move that challengers said invalidated other project approvals.
Even if it was a “procedural backfire,” unwinding the project “seems somewhat drastic,” said Aframe.
Trump and broken blades
The hearings come at a challenging moment for Vineyard Wind. Earlier this month, a significant portion of a 350-foot fiberglass turbine blade broke off from one of its turbines, scattering debris along the coast of Nantucket.
Federal regulators called a halt to installation and power production from the project a few days later to investigate the reason for the break.
Thursday’s hearings did not address the recent incident, but they could galvanize future opposition to the contested offshore wind project, according to a note Thursday from ClearView Energy Partners.
The turbine blade breakage was “a highly visible manifestation of environmental risk” wrote Clearview managing director, Timothy Fox.
“While the blade failure’s cause is still unknown, should GOP nominee Donald Trump win in November, his administration could likely point to this incident as cause to halt project reviews and lease sales (an outcome we already thought was possible, if not likely, before the blade incident),” he wrote.
Post-Chevron implications
The hearing also highlights how judges are reexamining cases following the Supreme Court’s recent decisions overturning the Chevron doctrine in its rulings in Loper Bright v. Raimondo and Relentless v. Commerce.
The legal doctrine directed courts to side with agencies’ “reasonable” interpretations of ambiguous statutes. But the Supreme Court ruled in June that it was up to courts to determine the “best” reading of an unclear statute.
Judge Gustavo Gelpi questioned whether the decision affected the Vineyard Wind litigation.
“I’m speaking for myself that this is not a case where we’re not deferring to agency interpretations of a regulation — this is an agency that is granting permits and is involved in the permit-making process. It would appear it is a different scenario,” he said.
Attorneys agreed the cases did not involve the same issue of how courts should defer to agencies’ reading of statutes that was the focus of the Loper Bright case.
The 1st Circuit could take the briefs in the two cases “turn them inside out, upside down and shake them real hard, there’s not a single citation to Chevron that would fall out, it’s entirely immaterial,” said Vineyard Wind attorney Peter Steenland, counsel at the law firm Sidley Austin.
This story also appears in Climatewire.
