100 F.4th 21
1st Cir.2024Background
- Residents of Martha’s Vineyard and Nantucket opposed the construction of an offshore wind project, alleging harm to the endangered North Atlantic right whale.
- The project, developed by Vineyard Wind 1, LLC, involved constructing wind turbines off the coast, enough to power 400,000 Massachusetts homes.
- The National Marine Fisheries Service (NMFS) issued an Incidental Harassment Authorization (IHA) allowing non-lethal, incidental disturbance of up to 20 right whales during construction.
- NMFS based its IHA decision on scientific evidence and required mitigation measures to minimize harm.
- Plaintiff Thomas Melone, a resident and owner of solar companies, challenged the IHA’s issuance and related approvals in federal court.
- The district court granted summary judgment for NMFS and Vineyard Wind, finding compliance with the Marine Mammal Protection Act (MMPA); Melone appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vineyard Wind’s intervention as a defendant | Vineyard Wind must have independent Article III standing to intervene | No independent standing required when party only defends agency action | Intervention permitted; no prejudice to plaintiff |
| "Small number" determination under MMPA | 5.4% (20 whales) is not a "small number"; claimed “one-third rule” arbitrary | Agency’s decision based on proportional approach, not fixed “one-third rule” | NMFS’s method reasonable; not arbitrary or capricious |
| Segmentation of specified activity and region | NMFS should consider all similar activities and a broader geographic region | Statute and regs require focus on applicant-specific activity and region | NMFS’s segmentation was proper |
| Consideration of cumulative effects and NEPA/EIS | NMFS failed to consider broader cumulative impacts on right whales | Agency did consider broader effects via negligible impact and other analyses | NMFS satisfied statutory/regulatory requirements |
Key Cases Cited
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (reviewing courts only look at the agency’s rationale at the time of decision, not post hoc justifications)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (describes "arbitrary and capricious" review under the APA)
- Town of Chester v. Laroe Estates, 581 U.S. 433 (2017) (Article III standing for intervenors)