Nantucket Residents Against Turbines v. Bureau of Ocean Energy Management

The United States Bureau of Ocean Energy Management (BOEM) (defendant) leased offshore land to Vinyard Wind I, LLC (Vinyard). Vinyard submitted a construction-and-operations plan to BOEM, seeking approval to build a windfarm on the lease. BOEM consulted with the National Marine Fisheries Service (NMFS) (defendant), which issued a biological opinion concluding that the project was unlikely to jeopardize the continued existence of the critically endangered North Atlantic right whale. BOEM subsequently issued its own environmental-impact statement (EIS) that relied on NMFS’s biological opinion. The EIS similarly concluded that Vineyard’s project was unlikely to jeopardize the right whale if Vineyard complied with mitigation measures like seasonal activity restrictions, noise-reduction technologies, trained whale observers, and vessel speed limits. Although the speed limits did not apply to crew-carrying vessels, such vessels were required to have trained observers and acoustic monitoring. Based on the biological opinion and EIS, BOEM approved construction of Vineyard’s project. Nantucket Residents Against Turbines (the residents) (plaintiffs) sued BOEM, alleging that (1) the federal agencies violated the Endangered Species Act (ESA) when concluding that the construction would not jeopardize the right whale and (2) BOEM violated the National Environmental Policy Act (NEPA) by relying on NMFS’s flawed biological opinion. Specifically, they alleged that the biological opinion failed to properly analyze the growing importance of southern New England waters, relied on flawed mitigation measures like the vessel speed limit that did not apply to crew vessels, and ignored the project’s combined impact on the right whale’s long-term recovery. The district court granted summary judgment in the agencies’ favor. The residents appealed.