U.S. Supreme Court Petitioned to Hear Appeal in Whales vs. Wind

First offshore wind case presented to the high court seeks to require agencies to uphold the Endangered Species Act. Meanwhile, BOEM admits it lacks a ‘fundamental understanding’ of ecosystem impacts.

A unique cloud formation at Holgate, N.J. Photo Jay Mann

At the end of September Nantucket Residents Against Turbines asked the Supreme Court to consider its appeal of a “lower court decision allowing federal agencies to disregard the Endangered Species Act in their rush to approve OSW (offshore wind) projects.” The group’s litigation began in 2021 against multiple federal agencies as well as Vineyard Wind 1, which is a mere 15 miles off the coast of Nantucket.

At issue is the failure of the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Service (NMFS) to use the “best available” data when it allowed the Vineyard Wind project to go forward.

At risk is the annihilation of the North Atlantic Right Whale, said in a 2022 stock assessment to be down to a paltry 338 individuals with just 70 known breeding females left.

“Despite this,” the group said, “NMFS ‘intentionally excluded’ from consideration the cumulative impact of hundreds of turbines in the right whales’ habitat…” and migratory route, only basing its review on the risk from “a handful of turbines…”

Bordering the Nantucket shoals and grouped off the coasts of Massachusetts and Rhode Island are ten leases okayed by BOEM. If all of them are completed, that one zone alone will consist of 924 offshore wind turbines, each as tall as the Eiffel Tower.

As president of the group, now called ACK For Whales, Vallorie Oliver noted in a press release, “The government tried to speed its pet political projects forward and gamed its ‘analysis’ so it could ignore the lethal threats to right whales.”

A ‘fundamental understanding’ lacking

In June of 2024 SouthCoast Wind, one of the projects neighboring Vineyard Wind, had its request to pursue, torment, or annoy marine mammals with the “potential to injure,” and disrupt “migration, breathing, nursing, feeding or sheltering” – otherwise known as an “incidental take” — published in the Federal Register.

To anyone not familiar with how this works, the Marine Mammal Protection Act contains a bizarre provision allowing for the harassment -- even deaths -- of these amazing animals. Offshore wind is no stranger to how this process works.

This particular request is meant to cover the five years from 2027-2032, which is the construction period of SouthCoast Wind.

The number of marine mammals that SouthCoast is asking for an OK to torment includes 566 fin whales, 1,162 minke whales, 9,834 gray seals, 52,943 dolphins, and 149 North Atlantic right whales -- almost half of the total population of the latter species.

Those would go under the category of level “B” harassment, not “expected” to result in injury or death.

As for potentially lethal level “A” takes, SouthCoast has asked for them, too — a total of 159, affecting fin whales, harbor porpoises, and the gray and harbor seal.

With such clear divisions between the two categories – “A” being harassment that has the potential to injure or kill and the more benign-sounding “B,” described as the “potential to disturb,” it sure sounds like BOEM is dealing with some pretty precise expertise here. But in reality, they know very little about what the consequences may be.

For example, on page 75 of the Federal Register notice, the agency states “there is significant uncertainty regarding the impacts of turbine foundation presence and operation on the oceanographic conditions that serve to aggregate prey species for North Atlantic right whales…” In other words, what will happen to the tiny animals that the giant whales feed on?  BOEM clearly doesn’t know.

As to all this just being a “temporary” disturbance for marine mammals, on page 31 BOEM states that “Near Dogger Bank in Germany, harbor porpoises continued to avoid the area for over two years after construction began (Gilles et al. 2009). Approximately 10 years after construction of the Nysted wind farm, harbor porpoise abundance had not recovered to the original levels previously seen…”

As for how much these experts know about the hearing of whales, on page 26, it states “that no direct measurements of hearing ability have been successfully completed for mysticetes”  (which are baleen whales such as the right whale). Could pile-driving and other sound-producing activities cause temporary or permanent deafness in whales? BOEM admits it doesn’t know. What it does know is that sound travels more efficiently in water than any other form of energy == in the ocean at around 1,500 meters per second, compared to an air speed of about 340 meters per second.

For a summary of BOEM’s “uncertainties,” the document offers this telling evaluation:

“Assessing the ecosystem impacts of offshore wind development has a unique set of challenges, including minimizing uncertainties in the fundamental understanding of how existing physical and biological oceanography might be altered by the presence of a single offshore wind turbine, by an offshore wind farm, or by a region of adjacent offshore wind farms.”

BOEM, which clearly suffers from a total lack of scientific integrity, offers this up as an excuse of sorts – that it is simply fulfilling “ongoing government- sanctioned demands for offshore wind energy.”