THOMAS MELONE, Plaintiff, Appellant, ALLCO RENEWABLE ENERGY, LIMITED; ALLCO FINANCE LIMITED, Plaintiffs, v. JANET COIT, in her official capacity of Assistant Administrator, National Marine Fisheries Service; NATIONAL MARINE FISHERIES SERVICE; VINEYARD WIND 1, LLC, Defendants, Appellees, DEBRA HAALAND, in her official capacity of Secretary of the Interior; JOHN A. ATILANO, II, Colonel, in his official capacity of Commander and District Engineer; MARTHA WILLIAMS, in her official capacity of Principal Deputy Director; US DEPARTMENT OF THE INTERIOR; BUREAU OF OCEAN ENERGY MANAGEMENT; GARY FRAZIER, in his official capacity of Assistant Director for Endangered Species; US ARMY CORPS OF ENGINEERS; US FISH AND WILDLIFE SERVICE, Defendants.
No. 23-1736
United States Court of Appeals For the First Circuit
April 25, 2024
Hon. Indira Talwani, U.S. District Judge
Thomas Melone and Allco Renewable Energy Limited on brief for appellant.
Todd Kim, Assistant Attorney General, Environment & Natural Resource Division, U.S. Department of Justice, Mark Arthur Brown, Kevin W. McArdle, and Thekla Hansen-Young, Environment & Natural Resource Division, U.S. Department of Justice, and Lea Tyhach, and Gladys P. Miles, Office of the General Counsel, National Oceanic and Atmospheric Administration on brief for the federal appellees.
David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, Jack W. Pirozzolo, and Sidley Austin LLP on brief for intervenor-appellee Vineyard Wind 1, LLC.
I.
We first briefly rehearse the statutory background, facts, and procedural history of the case.
A.
The Marine Mammal Protection Act (“MMPA“),
The MMPA includes certain exceptions to its general take prohibition. See, e.g.,
The process that applicants must follow to obtain an IHA is set forth in detail in NMFS‘s implementing regulations. See
B.
In 2009, BOEM began evaluating the possibility of wind energy development in the Outer Continental Shelf offshore from Massachusetts, pursuant to its authority under the Outer Continental Shelf Lands Act (“OCSLA“),
In 2015, BOEM awarded a commercial wind energy lease to Vineyard Wind covering a 166,886-acre (or 675 square kilometer) area. In 2017, Vineyard Wind submitted a proposed construction and operations plan to BOEM for review and approval. The project would consist of wind energy infrastructure capable of generating around 800 megawatts of clean wind energy, enough to power 400,000 homes. The infrastructure would be constructed in a roughly 76,000-acre zone within the lease area.
In September 2018, Vineyard Wind requested an IHA from NMFS to ensure compliance with the MMPA, because, as relevant here, noise from proposed pile-driving activities during construction of jacket and monopile foundations could incidentally disturb right whales.
The North Atlantic right whale is listed as endangered under the Endangered Species Act,
On a parallel track, NMFS also considered the potential impact of issuing Vineyard Wind an IHA by participating as a cooperating agency in BOEM‘s review of the project proposal under the National Environmental Policy Act (“NEPA“),
On May 21, 2021, NMFS issued the IHA to Vineyard Wind. In June 2021, NMFS published notice of its approval of the IHA under the MMPA. See 86 Fed. Reg. 33,810 (June 25, 2021). As relevant here, the IHA authorizes the non-lethal, incidental Level B harassment of no more than twenty North Atlantic right whales.
As detailed in the notice of issuance, NMFS evaluated Vineyard Wind‘s proposed construction activities and their potential impacts on fifteen species of marine mammals that it found may occur in the
NMFS explained that pile-driving activities in connection with the construction of up to eighty-four wind turbine generators and one or more electrical service platforms in the 75,614-acre project area (the “specified geographic region“) was expected to create underwater noise that would result in Level B harassment. The agency determined that noise from pile driving is the only source of right whale incidental harassment associated with project construction. To estimate incidental harassment from pile-driving noise, NMFS considered acoustic thresholds above which the best available science indicates that marine mammals would be impacted, the area that would contain noise above those levels in a day, the occurrence of marine mammals in that area, and the maximum potential number of days during which pile-driving activities would be permitted (102 days between May and November).
NMFS predicted that, given the extensive mitigation measures to be adopted, no Level A harassment of right whales would occur. Those measures include the use of seasonal restrictions on pile driving, where pile driving would only take place from May to November, and could only extend to December if unforeseen circumstances arose and BOEM approved the extension. Other measures include the use of sound attenuation devices, acoustic monitoring devices, trained protected species observers during construction, soft-start pile-driving procedures, and vessel strike avoidance measures.1
NMFS determined that the twenty right whales subject to Level B harassment constituted 5.4% of the population (estimated at 368 as of 2019), and that the amount was a “small number[]” of right whales under the MMPA. The agency made its small numbers finding “based on an analysis of whether the number of individuals taken annually from a specified activity is small relative to the stock or population size.”
NMFS also determined that the authorized harassment would result in a “negligible impact” on the right whale population. It determined that the whales affected by pile-driving noise may temporarily abandon their activities while swimming away from the noise, temporarily avoid the project area, and experience a temporary hearing impairment. But it determined that exposure to pile-driving noise would not impact any essential behavioral patterns or annual rates of recruitment and survival, nor would any right whale be injured or killed.
C.
In July 2021, plaintiff Thomas Melone -- a part-time resident of Martha‘s Vineyard, and owner of two solar energy companies joined as plaintiffs -- filed suit in the District of Massachusetts against NMFS, BOEM, and other federal agencies and officials, alleging that the Vineyard Wind project approvals violated various federal statutes, including the MMPA.
Vineyard Wind moved to intervene as a defendant. Melone opposed the request,
Melone eventually filed his operative second amended complaint, which asserted only two counts under the MMPA relating to NMFS‘s issuance of the IHA to Vineyard Wind. Count I alleged that NMFS did not comply with certain timing-related requirements of the MMPA,
The district court granted summary judgment in favor of NMFS and Vineyard Wind in full. As to Count I (the dismissal of which Melone does not appeal), the court found that NMFS did not comply with certain notice procedures under the MMPA, but that any such error was harmless. As to Count II, the district court held that NMFS complied with the MMPA in issuing the IHA to Vineyard Wind.
This appeal followed, in which Melone challenges (1) the district court‘s order permitting Vineyard Wind to intervene as a defendant and (2) the district court‘s order entering summary judgment for defendants NMFS and Vineyard Wind on Count II.
II.
We consider first Melone‘s challenge to the district court‘s order granting Vineyard Wind permission to intervene under
We review a district court‘s disposition of a motion for permissive intervention for abuse of discretion, reviewing subsidiary conclusions of law de novo and factual findings for clear error. T-Mobile Ne. LLC v. Town of Barnstable, 969 F.3d 33, 38 (1st Cir. 2020) (citing Int‘l Paper Co. v. Inhabitants of Town of Jay, 887 F.2d 338, 343 (1st Cir. 1989)).
Under
The district court denied Vineyard Wind‘s motion to intervene as of right under
Melone contends that Vineyard Wind was required to establish independent
Melone‘s remaining challenges to the intervention ruling fare no better. There was no abuse of discretion in the district court‘s finding that Vineyard Wind has a significant stake in, and thus shares a common question of fact with, this litigation. And, in any event, Melone fails to argue, let alone demonstrate, that the intervention in any way prejudiced his substantial rights. Rife v. One West Bank, F.S.B., 873 F.3d 17, 19 (1st Cir. 2017) (explaining that arguments not raised in an opening brief on appeal are deemed waived). And absent that showing, any such error would not warrant disturbing the district court‘s single entry of summary judgment for NMFS and Vineyard Wind. Cf. Prete v. Bradbury, 438 F.3d 949, 960 (9th Cir. 2006) (finding harmless the district court‘s erroneous grant of intervention). Melone‘s objection to Vineyard Wind‘s presence in this case therefore fails.
III.
We consider now Melone‘s challenge to the district court‘s order awarding summary judgment to NMFS and Vineyard Wind. He argues only that the district court erred in finding that NMFS complied with the MMPA in issuing the IHA to Vineyard Wind. And he further limits that argument by training his sights on two alleged errors. First, he argues that NMFS‘s determination that the incidental harassment of up to twenty right whales constituted a “small number” under the MMPA was arbitrary, capricious, and unlawful. Second, he argues that NMFS‘s consideration of the “specified activity . . . within a specific geographic region” where incidental harassment may occur for purposes of Vineyard Wind‘s IHA was impermissibly narrow in scope. We recite our standard of review and then treat Melone‘s arguments in turn.
A.
We review the district court‘s grant of summary judgment de novo. Dubois v. U.S. Dep‘t of Agric., 102 F.3d 1273, 1283 (1st Cir. 1996). In so doing, we review the agency‘s compliance with the MMPA under the Administrative Procedure Act (“APA“). Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 901-02 (9th Cir. 2012).
Under the APA, we may not set aside an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “unsupported by substantial evidence.”
B.
Melone‘s principal argument on appeal is that NMFS erred in finding that the proposed incidental harassment of up to twenty right whales (or 5.4% of its population) constituted a “small number” of the species, as required to grant the IHA under the MMPA. See
Under the MMPA, NMFS may only authorize the incidental take of “small numbers of marine mammals of a species or population stock” via the issuance of an IHA.
Here, in assessing whether Vineyard Wind‘s activity would incidentally harass only “small numbers” of right whales, NMFS determined that, pursuant to its proportional approach, its authorization to inflict Level B, non-lethal harassment on up to twenty right whales -- constituting less than 5.5% of its population stock -- was a “relatively small percentage[]” of that stock. After Melone brought suit challenging the agency‘s determination, NMFS then defended its approach before the district court by noting that “NMFS has set the upper limit for ‘small numbers’ under [its] proportional approach as one-third of a species’ population.” The agency then cited an unrelated final rule, which stated that “[c]onsistent with past practice, when the estimated number of individual animals taken . . . is up to, but not greater than, one-third of the most appropriate species or stock abundance, NMFS will determine that the number of marine mammals taken of a species or stock are small.” Now, Melone argues that the agency improperly rubberstamped Vineyard Wind‘s proposed Level B harassment of 5.4% of the right whale population simply because it is less than one-third.
On appeal, NMFS walks back its invocation of this so-called one-third rule in the face of Melone‘s attempt to hoist the agency by its own petard. It argues that we need not reach the issue of what constitutes the upper limit of the term “small numbers,” and that the agency did not rest its “small numbers” finding here on the
We agree with NMFS. The record shows that the agency only invoked the one-third upper limit as a belated post hoc rationalization of its “small numbers” finding in litigation. There is no evidence in the administrative record that it played any role in the agency‘s decisional process or that the agency otherwise applied the policy in determining whether to issue Vineyard Wind the IHA. It is a bedrock principle of administrative law that a court reviewing agency action may consider only the agency‘s explanation given at the time the relevant decision was made, as opposed to its post hoc rationale. See SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943). As a result, to the extent Melone takes issue with NMFS‘s “small numbers” determination based on its ostensible application of a hard-and-fast one-third rule, his argument fails.3
Putting aside Melone‘s critique of the agency‘s one-third rule, he offers little to otherwise support a finding that the non-lethal harassment of twenty right whales (or 5.4% of its population) is not a “small number.” Indeed, other courts have upheld similar agency determinations, and Melone presents no persuasive counterpoint. See, e.g., Native Vill. of Chickaloon v. NMFS, 947 F. Supp. 2d 1031, 1052-53 (D. Alaska 2013) (upholding NMFS‘s determination that a take of 10% of the beluga whale population affected a “small number” of beluga whales).
Melone argues in passing that “small numbers” should be limited to the “potential biological removal” threshold for right whales, which is less than one. The MMPA defines “potential biological removal” as the “maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.”
In summary, it is clear from the record that NMFS applied its scientific expertise to consider the nature of Vineyard Wind‘s activities and the type of harassment expected to occur, to quantify the proposed take based on pile-driving noise relative to the right whale population, and to make a separate finding that the proposed take would have a “negligible impact” on the species. See Native Vill. of Chickaloon, 947 F. Supp. 2d at 1051; see also City of Taunton v. EPA, 895 F.3d 120, 126 (1st Cir. 2018) (noting that under the APA‘s arbitrary and capricious standard of review, a court‘s deference is heightened when an agency‘s decision-making relies on its scientific and technical expertise). Given these considerations, we find no fault with the agency‘s “small numbers” determination here.
C.
Melone next argues that NMFS improperly segmented Vineyard Wind‘s “specified activity” that might result in incidental take and the “specific geographic region” within which that activity would occur for purposes of issuing the IHA. First, he argues that the statute requires a collective approach to IHA approval, and that it was error for NMFS to consider only Vineyard Wind‘s “specified activity” rather than also those of others engaging in similar activities contemporaneously. Second, he argues that NMFS improperly let Vineyard Wind define the “specific geographic region” as a 75,614-acre portion of the lease area, and that the region itself was impermissibly narrow in scope. Across both arguments, Melone‘s essential claim is that the agency‘s approach improperly segments applicant activities and regions so that the IHA appears to authorize the non-lethal harassment of only “small numbers” of right whales while ignoring its cumulative effect on the species. We consider each argument in turn.
1.
The MMPA provides that IHAs may be issued “[u]pon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region.”
Melone claims that the MMPA mandates that NMFS analyze collectively all activities similar to those proposed by Vineyard Wind because the statute refers to applications by “citizens” and specifically excludes “commercial fishing.” However, the statutory provision at issue concerns whether NMFS shall grant an IHA to a particular permittee, whether composed of a citizen or citizens. The process is plainly applicant-driven. Moreover, nothing in the MMPA expressly requires that NMFS analyze a broader range of activities outside the scope of an individual IHA application. See
Relevant legislative history also shows that Congress intended that “specified activity” be “narrowly identified so that the anticipated effects” resulting from the activity “will be substantially similar.”
Melone also argues that NMFS failed to consider the cumulative effect on right whales resulting from other activities apart from those proposed by Vineyard Wind. But this too misses the mark. As NMFS notes, it did consider the effects of ongoing and past anthropogenic activities aside from Vineyard Wind‘s project as part of its “negligible impact” analysis, which analyzes the species’ density, distribution, population size, growth rate, and other relevant stressors. Additionally, NMFS explained when issuing the IHA that NEPA required it to “evaluate[] the direct, indirect, and cumulative effects of the [IHA],” which it did by participating as a cooperating agency in BOEM‘s development of the project‘s EIS. It also considered such factors when preparing its biological opinion for BOEM in compliance with the ESA. Meanwhile, Melone challenges none of those determinations here. As a result, his argument fails.
2.
Finally, Melone argues that NMFS improperly limited the region in which covered activities would occur to that which Vineyard Wind delineated in its IHA application -- a 74,614-acre portion of the 675-square-kilometer lease area. He argues that NMFS must determine the region based on similar “biogeographic characteristics,” see
The MMPA left the term “specific geographic region” undefined. The House committee report, however, noted that the region “should not be larger than is necessary to accomplish the specified activity, and should be drawn in such a way that the effects on marine mammals in the region are substantially the same.” H.R. Rep. No. 97-228, at 19 (Sept. 16, 1981). “Thus, for example, it would be inappropriate to identify the entire Pacific coast of the North American continent as a specified geographical region, but it may be appropriate to identify particular segments of that coast having similar characteristics, both biological and otherwise, as specified geographical regions.”
NMFS defends its approach by arguing that it need not define the region more broadly for purposes of the IHA because it already considered the impact on the entire right whale population as they migrate through the project area. As noted, it did so in its “negligible impact” analysis, its biological opinion, and in its participation in BOEM‘s EIS. In its view, there is “no take that would result from the project for which NMFS failed to account.” Moreover, the agency argues that the area in question is precisely where Vineyard Wind‘s pile-driving activities, and therefore incidental harassment, would occur, and that this area shares similar biological characteristics. As a result, it argues -- and we agree -- that Melone‘s overarching concern that the agency‘s narrow delineation of the “specific geographic region” threatens to
IV.
We need go no further. For the foregoing reasons, the judgment of the district court is affirmed.
KAYATTA, CIRCUIT JUDGE