First Circuit debate pits offshore windmills against whales

BOSTON (CN) — The First Circuit heard arguments Tuesday on whether to curtail the nation’s first major offshore wind farm because it imperils the endangered North Atlantic right whale — and while the debate was highly technical, the judges seemed hesitant to overturn the Biden administration’s approval of the project.

Two months ago, a company called Vineyard Wind began operating five wind turbines some 14 miles off the islands of Martha’s Vineyard and Nantucket in Massachusetts, generating enough power for 30,000 homes. The turbines, which have blades longer than a football field and are spaced a nautical mile apart, are the first step in a plan that envisions 62 windmills powering 400,000 homes.

The wind farm is backed by the Biden administration as part of its green-energy initiative, as well as by Democratic officials in Massachusetts. "This marks a turning point in the clean energy transition," Governor Maura Healey said in a news release. "America's offshore wind industry has gone from a dream to reality."

But the dream is a nightmare for the right whales, of which there are only about 350 left, according to Nantucket Residents Against Turbines, an advocacy group that brought a lawsuit to stop or limit the project. The group lost in federal court and appealed to the First Circuit.

The endangered whales can live to be 70 years old and can grow as large as 50 feet and 200,000 pounds. Some 93% of them inhabit an area that includes the wind farm, and are at risk from the windmills because of vessel strikes, entanglement with wires, and the noise of the construction pile drivers and of the turbine operations, according to the group.

The Vineyard Wind project was approved by federal environmental officials in May 2021, but the group claims the federal agencies didn’t adequately consider the harm to the whales.

Moving the project elsewhere wouldn’t be practical because the area is "the Saudi Arabia of offshore wind," according to Vineyard Wind’s former CEO. It has very consistent winds, a relatively shallow sea floor and a large population nearby.

Justice Department attorney Thekla Hansen-Young told the judges that the government’s approval was premised on numerous mitigation measures to protect the whales, including having people on the platforms watch for whales and the use of aerial monitoring and sonar.

In response, the group’s lawyer, William Stavola of Colts Neck, New Jersey, complained that platform observation was shown to be only 9% effective and sonar was only 25% effective.

“What do you consider effective?” asked U.S. Circuit Judge William Kayatta, an Obama appointee. “That adds up to 34%. For a major-league baseball hitter, that’s be pretty efficacious.”

Kayatta said it would be one thing if the measures were only 9% effective in preventing deaths, but it was another if they were only 9% effective in spotting whales in the general area. “Why isn’t what the agency did OK?” he asked.

Hansen-Young added that “it’s easy to create a sound bite and say ‘9% effective,’ but that’s not true.” She said the mitigation measures taken together are “highly effective,” especially because building operations are banned in the springtime, when whales are typically in the neighborhood. “No whales have been sighted in the area during the months when construction is allowed,” she claimed.

Pile driving does have a negative effect on the whales, she conceded, but “it won’t keep the species from recovering.”

Vineyard Wind’s lawyer, Peter Steenland of Sidley Austin in Washington, D.C., said the environmental group’s brief was disingenuous because it suggested that the agencies ignored negative studies that they in fact considered.

“They say, the analysis didn’t consider this on pages 421 and 422,” he argued. “Well, right! It was on page 424.”

But Stavola responded that just because an agency cited a study in its report didn’t mean that it actually considered it.

U.S. Circuit Judge Sandra Lynch, a Clinton appointee, pressed Stavola on whether he thought any mitigation measures would be sufficient.

“There needs to be a complete redo of the analysis,” he replied.

“You seem not to be answering my question,” Lynch shot back. “Are you saying there are no mitigation measures that would work?”

Stavola stumbled before finally answering “yes.”

U.S. Circuit Judge Gustavo Gelpí, a Biden appointee, seemed to think that the agencies did a reasonable job. “Processes were followed,” he said. “It’s not a perfect world, and decisions have to be made, but it seems to me that we owe some deference to the way the decisions were made.”

Although there are few right whales, they have had an outsized impact on the judicial system recently, with the state of Maine challenging federal fishing regulations designed to protect the whales and the Maine lobster industry suing an environmental group for defamation over its claims that the industry is endangering the whales, among other cases.

“We’re familiar with the whales,” Kayatta commented dryly.

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