Marzulla Law has filed a petition for a writ of certiorari in the U.S. Supreme Court, asking the Court to review a decision of the First Circuit involving the National Marine Fisheries and Bureau of Ocean Energy Management’s approval of the Vineyard Wind Project off the shores of Nantucket, Massachusetts. Marzulla Law represents a group of Nantucket residents who challenge the adequacy of the federal government’s environmental review of the Project. They argue that the agencies ignored the Endangered Species Act (ESA) in their rush to approve Vineyard Wind Project.
The petition asks the Supreme Court to review a regulation promulgated by the National Marine Fisheries Service (NMFS), which allows the agency to ignore the thousands of planned wind turbines to be built in the Atlantic Ocean, in contradiction of the plain language of the ESA requirement to use “the best available scientific and commercial data available.”
At issue in this Petition is the continued survival of one of the most endangered species on the planet—the North Atlantic Right Whale. Its annual migration path is directly in the path of the Government’s plan to construct 30 wind turbine projects, which will hold thousands of wind turbines. Yet, the Government itself acknowledges that the death of even one Right Whale will have adverse impacts on the species. There are only about 300 living Right Whales.
In April 2024, the First Circuit upheld a district court decision to dismiss the Nantucket legal challenge suit, claiming that it had to defer to the federal agencies’ interpretation of the ESA’s requirements.
Stated Nancie Marzulla, counsel for the Nantucket residents: “The panel sidestepped the ESA requirements by deferring to the agencies. In its Loper Bright decision, the Supreme Court said courts and judges decide legal interpretations, not marine biologists.”
“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 G. Marzulla
Background: The NMFS’ Unlawful Interpretation of the Law
The ESA requires NMFS to issue a biological opinion as to the potential harm a project poses to endangered or threatened species. Section 7 of the ESA requires NMFS and Bureau of Ocean Management (BOEM) to use “the best available scientific and commercial data available.”
However, NMFS created its own regulatory exception to that requirement, even though its and BOEM’s analyses admitted OSW “would introduce or further contribute to stressors that affect” the Right Whales and “the loss of even one individual a year . . . may reduce the likelihood of species recovery.”
The Petition points out that NMFS:
- “intentionally excluded” from consideration the cumulative impact of hundreds of turbines in the Right Whales’ habitat,
- only “considered” the impact of a handful of turbines even though BOEM had issued 25 OSW leases, and
- in its own documents admits it deliberately ignored the impact of 316 other turbines that it was approving.
Thus, NMFS violated Section 7’s requirements to use the “best available scientific and commercial data available.”
Marzulla stated: “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.”
