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On May 17, 2023, the United States District Court for the District of Massachusetts dismissed plaintiffs’ challenges to the Vineyard Wind Project—the United States’s first major offshore wind project. The plaintiffs, nearby residents, challenged the Bureau of Ocean Energy Management’s (“BOEM”) final Environmental Impact Statement and the National Marine Fisheries Service’s (“NMFS”) Biological Opinion related to the offshore wind energy project, arguing that the agencies’ assessments violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). The plaintiffs’ arguments centered mostly on the project’s impact on an endangered species, the North Atlantic right whale.

BOEM approved the Construction and Operations Plan for the Vineyard Wind Project in July 2021, approximately 12 years after BOEM began evaluating the site for wind energy development. Multiple environmental impact statements and ESA consultations have a occurred in conjunction with the project. As part of its approval, the agencies required use of multiple mitigation strategies during the construction and operation stages to limit impacts to the North Atlantic right whales.

The plaintiffs argued that BOEM and NMFS relied on outdated studies and failed to consider possible impacts that the project could have. The court dismissed these claims, deferring to the agencies’ judgment on what information and data were reliable. The court also found that the agencies took a hard look at the possible impacts the project could have on the species.

There are currently three other challenges to the Vineyard Wind Project pending before the same court (Melone v. Coit, 1:21-cv-11171-IT; Seafreeze Shoreside, Inc. v. United States Department of the Interior, 1:21-cv-11091-IT; and Responsible Offshore Development Alliance v. United States Department of the Interior, 1:21-cv-11172-IT). The plaintiffs in these cases also challenge the adequacy of the agencies’ assessments under NEPA and the ESA, as well as under the Outer Continental Shelf Lands Act, the Clean Water Act, and the Marine Mammal Protection Act.   For each of these statutory claims, a key issue will be whether the record demonstrates that the agency adequately considered the environmental consequences of approving the project.

These court developments are happening as the Vineyard Wind Project begins construction. If the court were to vacate the agency approvals, the United States’s first major offshore wind project could suffer serious delays.

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Photo of Emily von Qualen Emily von Qualen

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in…

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in the Western District of Louisiana with Judge Minaldi.

Emily received her Juris Doctor from Tulane University Law School in 2016, graduating first in her class.  During law school, she also served as a judicial extern to the Honorable James L. Dennis of the United States Court of Appeals for the Fifth Circuit and the Honorable James Brady of the United States District Court, Middle District of Louisiana.

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Prior to joining the firm, Jessie had an eight-year seagoing career and has experience sailing on…

Jessie Shifalo is a member of the firm’s Maritime, Oilfield, & Insurance practice group. She is also an experienced mariner, holding a USCG Unlimited Tonnage Master’s license.

Prior to joining the firm, Jessie had an eight-year seagoing career and has experience sailing on oil and chemical tankers, container ships, car carriers, and salvage vessels both domestically and internationally. She spent half of her sailing career working as senior management on vessels and truly understands the day-to-day operations and what happens onboard.

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