Embattled Vineyard Wind project may face SCOTUS scrutiny over whale impact

An offshore wind farm that scattered debris into the Atlantic Ocean this summer is now at the center of a high-stakes legal battle that could be heading to the U.S. Supreme Court. A group of Nantucket residents with the organization ACK for Whales is challenging the federal government’s approval of the Vineyard Wind project, arguing it threatens the survival of the endangered North Atlantic right whale.

“We are optimistic that the Supreme Court will grant review of the important issue in this petition regarding an agency’s abrogating its obligations to the right whale under the Endangered Species Act,” Nancie Marzulla, ACK For Whales’ counsel, said.

The dispute dates back three years, with ACK for Whales asserting that the National Marine Fisheries Service (NMFS) ignored aspects of the Endangered Species Act. Specifically, the group claims the agency did not properly assess the potential impact of the wind farm on the endangered North Atlantic right whale population.

Vineyard Wind, the project developer, has countered that the project underwent a “rigorous and thorough” review process to ensure environmental compliance.

Under the Endangered Species Act, the NMFS is required to issue a biological opinion on how projects, such as offshore wind farms, might affect endangered species.

According to ACK for Whales, the agency’s analysis only considered the impact of a small number of turbines, despite plans for the agency to approve the installation of over 300 additional turbines in the future.

The NMFS itself has acknowledged that right whales face “a high risk of extinction” and “the loss of even one individual a year” could “reduce the likelihood of species recovery.”

ACK for Whales argues that this analysis was ignored when the federal government approved the Vineyard Wind project, leaving the species vulnerable to harm from the expanding turbine installations.

In addition to the environmental concerns, the group points to a blade failure at the wind farm this past summer, which caused fiberglass debris to spill into the Atlantic Ocean and wash up on surrounding beaches.

Val Oliver, the founding director of ACK For Whales, said “the disastrous blade catastrophe in July — not to mention the evidence of grave harm to an endangered species — makes clear the cost of the government’s decision to ignore its own laws.”

“The government tried to speed its pet political projects forward and gamed its ‘analysis’ so it could ignore the lethal threats to right whales,” Oliver added. 

After a U.S. First Circuit Court of Appeals ruling in April dismissed the group’s legal challenge, ACK for Whales is now petitioning the Supreme Court to hear the case. It remains uncertain whether the nation’s highest court will agree to take it up.