Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Mgmt.

100 F.4th 1

NANTUCKET RESIDENTS AGAINST TURBINES; Vallorie Oliver, Plaintiffs, Appellants, v. U.S. BUREAU OF OCEAN ENERGY MANAGEMENT; National Oceanic and Atmospheric Administration;National Marine Fisheries Service; Debra Haaland, Secretary of the Interior;Gina M. Raimondo, Secretary of Commerce; Vineyard Wind 1, LLC, Defendants, Appellees.

No. 23-1501

United States Court of Appeals, First Circuit

April 24, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]

Thomas Stavola, Jr. for appellants.

Thekla Hansen-Young, with whom Todd Kim, Assistant Attorney General, Environment & Natural Resources Division, U.S. Department of Justice, Luther L. Hajek, Perry Rosen, Mark Arthur Brown, Angela Ellis, Kevin W. McArdle, Pedro Melendez-Arreaga, Assistant Solicitor, U.S. Department of the Interior, Stephen R. Vorkoper, Lea Tyhach, Attorney Advisor, Office of General Counsel, National Oceanic and Atmospheric Administration, and Scott Farley were on brief, for the federal appellees.

Peter R. Steenland, with whom David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, Brooklyn Hildebrandt, Jack W. Pirozzolo, and Sidley Austin LLP were on brief, for appellee Vineyard Wind 1, LLC.

Before Kayatta, Lynch, and Gelpí, Circuit Judges.

KAYATTA, Circuit Judge.

After consulting with the National Marine Fisheries Service ("NMFS"), the U.S. Bureau of Ocean Energy Management ("BOEM") approved the construction of Vineyard Wind, a wind power project off the coast of Massachusetts. A group of Nantucket residents -- organized as Nantucket Residents Against Turbines ("Residents") -- allege that the federal agencies violated the Endangered Species Act by concluding that the project's construction likely would not jeopardize the critically endangered North Atlantic right whale. The Residents further allege that BOEM violated the National Environmental Policy Act by relying on NMFS's flawed analysis.

We disagree. NMFS and BOEM followed the law in analyzing the right whale's current status and environmental baseline, the likely effects of the Vineyard Wind project on the right whale, and the efficacy of measures to mitigate those effects. Moreover, the agencies' analyses rationally support their conclusion that Vineyard Wind will not likely jeopardize the continued existence of the right whale. We therefore affirm the judgment of the district court. Our reasoning follows.

I.

A.

This case lies at the intersection of four federal environmental statutes: (1) the Outer Continental Shelf Lands Act ("OCSLA"), (2) the Endangered Species Act ("ESA"), (3) the Marine Mammal Protection Act ("MMPA"), and (4) the National Environmental Policy Act ("NEPA").

1.

OCSLA authorizes the Secretary of the Interior to issue leases for offshore wind development. 43 U.S.C. § 1337(p)(1)(C). The Secretary has delegated her leasing authority to BOEM. 30 C.F.R. § 585.100. Before issuing an offshore lease, BOEM must "coordinate and consult with relevant [f]ederal agencies," and it must comply with the consultation requirements of other federal environmental statutes, such as the ESA. Id. § 585.203.

Once BOEM issues an offshore lease, its work is not done. The agency must also approve a site assessment plan and a construction and operations plan. See id. §§ 585.605, 585.620. The construction and operations plan must describe "all planned facilities that [the lessee] will construct and use," as well as "all proposed activities including [the lessee's] proposed construction activities, commercial operations, and conceptual decommissioning plans." Id. § 585.620(a)-(b). No construction may begin until BOEM approves the construction and operations plan. Id. § 585.620(c).

2.

Under section 7 of the ESA, a federal agency must consult with NMFS whenever an agency action "may affect" an endangered marine species like the right whale. 50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(a)(2); see also 35 Fed. Reg. 18319, 18320 (Dec. 2, 1970) (declaring the right whale an endangered species). A section 7 consultation ends with NMFS issuing a biological opinion. 16 U.S.C. § 1536(b)(3)(A). In that opinion, NMFS must determine if the agency action is "likely to jeopardize the continued existence" of the endangered species. 50 C.F.R. § 402.14(h)(iv). NMFS must reach this determination after reviewing the "best scientific and commercial data available." Id. § 402.14(g)(8).

Section 9 of the ESA generally prohibits the "take" of an endangered species. 16 U.S.C. § 1538(a)(1)(B). To "take" an endangered species means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect," the species, or "to attempt . . . any such conduct." Id. § 1532(19). Relevant here are so-called "incidental takes." These are takes that "result from, but are not the purpose of," an agency's or applicant's otherwise lawful activity. 50 C.F.R. § 402.02.

Some incidental takes are allowed. 16 U.S.C. § 1536(b)(4), (o). As relevant here, incidental take approval requires NMFS to issue an "incidental take statement" along with the biological opinion. 50 C.F.R. § 402.14(i); 16 U.S.C. § 1536(b)(4). That statement must, among other things, (1) describe the extent of the anticipated incidental take; (2) outline reasonable measures to reduce and monitor such take; and (3) incorporate measures to comply with section 101(a)(5) of the MMPA. See 50 C.F.R. § 402.14(i)(1).

3.

When the animal to be taken is an endangered marine mammal, NMFS may not "issue an incidental take statement . . . under the ESA until the take has been authorized under the MMPA. The incidental take statement must incorporate any mitigation measures required under the MMPA." Ctr. for Bio. Diversity v. Bernhardt, 982 F.3d 723, 742 (9th Cir. 2020) (internal citations omitted).

Like the ESA, the MMPA regulates actions that "harass" endangered species. See 16 U.S.C. §§ 1362(13), 1372(a). Under the MMPA, there are two types of harassment. Level A harassment is "any act of pursuit, torment, or annoyance" that has the "potential to injure a marine mammal or marine mammal stock in the wild." Id. § 1362(18)(A)(i), (18)(C). Level B harassment is less serious, and encompasses "any act of pursuit, torment, or annoyance" that has the "potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns." Id. § 1362(18)(A)(ii), (18)(D). NMFS may authorize the incidental harassment of a protected marine mammal if it makes certain factual findings.¹ See 16 U.S.C. §§ 1373, 1374. This permission is called an incidental harassment authorization.

4.

Finally, there is NEPA. When a major federal agency action will have significant environmental effects, NEPA requires that the acting agency draft an environmental impact statement. See 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.3. That statement must analyze, among other things, the "reasonably foreseeable environmental effects" of the proposed action, the "reasonable range of [technically and economically feasible] alternatives" to the proposed action, and reasonable measures to mitigate the environmental effects of the proposed action. 42 U.S.C. § 4332(C); see also Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1286 (1st Cir. 1996). When considering the effects of a proposed agency action on an endangered species, the environmental impact statement may rely on, or incorporate the findings of, a biological opinion. See City of Tacoma v. FERC, 460 F.3d 53, 75-76 (D.C. Cir. 2006).

NEPA is a procedural statute. It "does not mandate particular results, but simply prescribes the necessary process" for evaluating an agency action's environmental effects. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). If an environmental impact statement sufficiently analyzes the likely environmental effects of a proposed agency action, the agency can still proceed on the grounds that "other values outweigh the environmental costs." Id.

B.

In 2014, BOEM made a small portion of the Massachusetts Wind Energy Area -- a section of the Outer Continental Shelf -- available for lease. See 79 Fed. Reg. 34771 (June 18, 2014). One year later, the agency leased a plot measuring 675 square kilometers to Vineyard Wind 1, LLC.

In 2017, Vineyard Wind submitted a construction and operations plan, proposing to build an offshore wind project in the northern portion of the lease area (the "wind development area"). The wind development area is located approximately fourteen miles southeast of Martha's Vineyard, and it will host turbines capable of generating approximately 800 megawatts of clean wind energy. That is enough energy to power 400,000 homes.

The federal agencies then began the environmental review process. In 2018, BOEM requested consultation with NMFS pursuant to section 7 of the ESA. Consultation began in April 2019. NMFS issued its first biological opinion in September 2020, finding that the Vineyard Wind project would likely not jeopardize the continued existence of the right whale. The opinion also outlined mitigation measures to reduce the project's effects on the right whale. After new science became available, NMFS reinitiated consultation, eventually issuing an updated biological opinion in October 2021. The updated opinion also found that the project would likely not jeopardize the right whale's continued existence. Both the 2020 and 2021 versions of the biological opinion included incidental take statements. Those statements both concluded that, once Vineyard Wind adopted appropriate mitigation measures, the maximum anticipated take from project construction was Level B harassment -- caused by installation noise -- of twenty right whales.

BOEM issued its final environmental impact statement in March 2021. The environmental impact statement included its own analysis of how the proposed project would affect right whales and other marine mammals. It also included an...