Posted on November 8, 2023 by Jeff Porter
Over two years ago I wrote about a lawsuit filed by a Connecticut-based solar farm developer with a summer home in Martha’s Vineyard seeking to enjoin the Vineyard Wind project off the Massachusetts coast. This particular NIMBY (one of no fewer than three NIMBY petitioners challenging the Vineyard Wind project in separate federal lawsuits) alleged the Federal Government had violated the National Environmental Policy Act, the Clean Water Act, the Outer Continental Shelf Leasing Act and the Marine Mammal Protection Act in permitting the Vineyard Wind project.
Federal District Court Judge Indira Talwani dispensed with this NIMBY challenge as she has dispensed with others. And, fortunately, the construction of the Vineyard Wind project continues. Now this particular NIMBY has asked the First Circuit Court of Appeals to revive his lawsuit. His appeal is focused on the effect of the Vineyard Wind project on right whales, ignoring the effect of our warming oceans on these critically endangered species.
There is no chance that the First Circuit Court of Appeals will see things the NIMBY’s way. It is one of the last bastions of enthusiastic adherence to the doctrine of Chevron deference to Federal agencies that has guided our Federal courts for forty years.
Unfortunately opponents of wind-generated energy may be losing battles but winning the war. Just last week Orsted scrapped two projects off the coast of southern New Jersey and last year the Commonwealth Wind and Mayflower Wind projects off the coast of Massachusetts were put on ice. Are there other headwinds other than litigation facing the wind energy industry? Sure. But the time and money it takes to permit these projects in the United States and then to defend them in court certainly doesn’t help.
And, as if all of that isn’t daunting enough, the United States Supreme Court is almost certain to drive a stake through the heart of the Chevron deference doctrine in its current term and that will make it harder to dispense with NIMBY challenges to renewable energy projects.
Here’s the thing. Either we 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 Government to authorize billions of dollars in spending to expedite a transition to renewable energy, including energy generated by wind. Now we’re learning the hard way that even that once in a lifetime stimulus may not be enough to expedite our renewable energy transition.
In the face of our climate emergency, and the other challenges faced by those leading our transition to renewable energy, it makes no sense to allow the additional drag on renewable energy projects caused by NIMBY lawsuits like this one. I hope I’m wrong, but I think only the United States Senate and House of Representatives can fix this. That’s unlikely to happen in an election year but it can’t wait much longer.
A part-time Martha’s Vineyard resident urged the First Circuit on Monday to undo an incidental harassment authorization for the Vineyard Wind 1 project, characterizing a lower judge’s deference to federal officials’ conclusion that only a “small number” of endangered North Atlantic right whales would be affected as “Chevron deference on steroids.”
According to Thomas Melone, president of Connecticut-based Allco Renewable Energy Ltd., the National Marine Fisheries Service anticipated the Level B harassment of up to 20 right whales — about 5% of the population — and simply concluded that qualified as an allowable “take” of “small numbers” of animals under the Marine Mammal Protection Act, since less than a third of the population would be impacted.