President of solar energy company loses bid to block offshore wind project

A federal judge yesterday dismissed the second of four lawsuits against the Vineyard Wind turbine project in the ocean off Martha's Vineyard and Nantucket - this one by Thomas Melone, president of a solar-energy company and a seasonal Nantucket resident.

Melone argued the National Marine Fisheries Service disregarded federal rules in concluding the project, consisting of up to 90 wind turbines across 104 square miles of ocean and cables to Hyannis, would not harm his beloved right whales But as she did in May with a suit by two other Nantucket residents, US District Court Judge Indira Talwani ruled that he failed to make his case.

One issue for Melone was the service's determination that noise from the pile driving for the turbine anchoring would mean only minimal, if any, impact on the right whales that spend time off the islands, especially because approval was coupled with restrictions on the speed of boats hauling equipment to the site, the banning of all pile driving from January through April, when the whales frequent the area and the placement of "trained protected species observers" on boats to ensure whales aren't harmed and to ensure work stops should right whales get too close. Some of the measures are also intended to protect sea turtles in the area.

Melone also argued that service missed its own deadlines for filing certain documents and did not give the public enough of a chance to comment.

Talwani first ruled that Melone, who has traveled to Florida to try to see the rare whales when they are there, did prove he had standing to sue.

Given the minute remaining population, Melone has sufficiently alleged a small probability that the death of even one whale in connection with the Vineyard Wind Project may impact Melone’s ability to view right whales.

But Talwani then ruled that the service complied with the Marine Mammal Protection Act in concluding only a small number of whales might be disturbed by the noise from the pile driving, especially given all the measures Vineyard Wind would have to take to try to protect them.

She wrote that while the service did miss delays for formally issuing two key findings - in one case by two years - the delays were ultimately harmless because the public was afforded a chance to comment at each step "and provided notice to the general public by numerous, well-established means," so the errors were "harmless error." If anything, she wrote, Melone, himself a lawyer, missed his own key deadlines for trying to appeal the service's ruling and admit into evidence certain documents.

She continued that the service took reasonable steps to ensure the minimization of harm to the whales and that its process ensured considering what might happen to the whales once the turbines were in operation or additional turbines were permitted and that it was not arbitrary or capricious - or bowing to immense political pressure from the Biden administration.

She also discounted Melone's personal difficulties in actually seeing right whales - he reported seeing just one mother and calf on his own personal watch from a hotel room in Fernandina Beach, FL in December, 2021 - as proof that people who do that for a living would have an equally hard time spotting the endangered species.

Plaintiff’s contention that the PSOs [protected species observers] are flawed as a mitigation measure is supported only by his own experience using binoculars to view right whales, but Plaintiff’s personal experience with binoculars in a recreational setting is insufficient to cast doubt on the reasonableness of this required mitigation measures. More crucially, Plaintiff’s argument concerning the use of PSOs disregards that, as stated in the Notice of Issuance of [its decision to allow the project], NMFS is requiring a suite of mitigation measures, of which PSOs are only one aspect. Even if the use of PSOs were flawed, in the absence of an argument that the remaining offered mitigation measures are unreasonable, Melone's challenge does not undermine NMFS's decision to approve the Vineyard Wind IHA. Having failed to point to any case law, Record evidence, or testimony undermining the agency's reliance on PSOs - in conjunction with other measures which Plaintiff does not challenge - Plaintiff's argument that issuance of Vineyard Wind [approval] is arbitrary and capricious because of its reliance on PSOs in effecting methods of "least practicable impact" fails.