Allco Renewable Energy Limited v. Haaland
1:21-cv-11171
D. Mass.Jan 7, 2022Background
- Two consolidated suits challenge BOEM/other agencies' environmental review and approvals for the Vineyard Wind offshore wind project under NEPA, ESA, and the APA; plaintiffs seek vacatur and injunctions.
- Allco (a renewable-energy company) and NRAT (Nantucket Residents Against Turbines) filed separate suits; proceedings consolidated for purposes of the intervention motions.
- Vineyard Wind holds the project approvals/permits, submitted plans in 2017, a BiOp and Final EIS were completed (NOAA BiOp Sept. 2020; BOEM Final EIS Mar. 2021).
- Vineyard Wind says it has ~$300M invested, >$3B in related contracts requiring mid‑2022 construction start; it argues vacatur or injunction would cause severe commercial harm and likely project delay or collapse.
- Vineyard Wind moved to intervene as of right under Fed. R. Civ. P. 24(a)(2) and alternatively for permissive intervention under Rule 24(b); plaintiffs opposed.
- Court: denied intervention as of right without prejudice (24(a)) but granted permissive intervention (24(b)) in both actions.
Issues
| Issue | Plaintiff's Argument | Vineyard Wind's Argument | Held |
|---|---|---|---|
| Whether intervenor must show Article III standing | Allco: intervenor-defendant must have Article III standing | Vineyard Wind: standard inquiry unnecessary; interest under Rule 24 normally suffices | Court declined to resolve standing now; followed First Circuit guidance that interest usually suffices and reserved right to revisit if Vineyard Wind later seeks to be sole defendant |
| Protectible interest under Rule 24(a)(2) | Plaintiffs: Vineyard Wind's interest is contingent/speculative because re‑review could preserve approvals | Vineyard Wind: interest is concrete in existing approvals and contractual reliance; economic harm is direct | Court held Vineyard Wind has a sufficiently direct, non‑contingent interest in the challenged approvals |
| Adequacy of government representation (final Rule 24(a)(2) element) | Plaintiffs: government will adequately defend approvals; Vineyard Wind gave no tangible basis to show divergence | Vineyard Wind: private economic urgency and risk of delay create potential divergence from government's posture | Court found presumption of adequate representation not overcome on current record; denied intervention as of right but without prejudice to renew if circumstances change |
| Permissive intervention under Rule 24(b) | Plaintiffs: intervention would cause inefficiency and prejudice | Vineyard Wind: common legal/factual questions and willingness to avoid delay; timely motion | Court exercised broad discretion and granted permissive intervention; found no undue delay or prejudice |
Key Cases Cited
- Conservation Law Found. v. Mosbacher, 966 F.2d 39 (1st Cir. 1992) (defines intervention interest as direct, not contingent).
- Pub. Serv. Co. of New Hampshire v. Patch, 136 F.3d 197 (1st Cir. 1998) (intervention where contractual/economic rights may be affected).
- Daggett v. Comm’n on Governmental Ethics & Election Pracs., 172 F.3d 104 (1st Cir. 1999) (commonsense view of intervention inquiry).
- Cotter v. Massachusetts Ass’n of Minority L. Enf’t Officers, 219 F.3d 31 (1st Cir. 2000) (interest under Rule 24 generally suffices for Article III).
- Trobovich v. United Mine Workers of Am., 404 U.S. 528 (1972) (minimal burden to show representation "may be" inadequate).
- Massachusetts Food Ass’n v. Massachusetts Alcoholic Beverages Control Comm’n, 197 F.3d 560 (1st Cir. 1999) (presumption that government adequately represents private parties).
- State v. Dir., U.S. Fish & Wildlife Serv., 262 F.3d 13 (1st Cir. 2001) (explanation of presumption and need for adequate explanation to overcome it).
- T-Mobile Ne. LLC v. Town of Barnstable, 969 F.3d 33 (1st Cir. 2020) (fear of unfavorable settlement insufficient to show inadequate representation).