The Nantucket Residents Against Turbines, or ACKRat, have asked the First Circuit Court of Appeals to find that the Federal Bureau of Ocean Energy Management and the National Marine Fisheries Service acted "arbitrarily and capriciously" in concluding that the Vineyard Wind project could proceed in compliance with Federal laws. Construction of the Vineyard Wind project is already well underway after a decade of planning and permitting.
There is as much chance that ACKRat will prevail in this appeal as there is that the Boston Red Sox will win the 2023 World Series. Anyone with a law degree could have predicted Judge Talwani's ruling against ACKRat and the First Circuit's response to this latest plea is just as predictable.
Why? Because at least for now Federal Courts are required to defer to the decision making of Federal agencies specifically charged with making specific decisions under specific Federal laws unless the decision making is completely indefensible. That most certainly was not the case here.
But, in the Supreme Court term that is just beginning, our nation's highest court has agreed to hear a case which many believe will lead to the overturning of its longstanding precedent of deference to Federal agencies. That may not affect the outcomes of cases like the one brought by ACKRat but it will certainly make the litigation of those cases more complicated and time consuming.
Ironically, today Massachusetts Governor Healey swore in the members of the new Massachusetts Commission on Clean Energy Infrastructure Siting and Permitting based on the uncontroversial fact that we're not going to meet our Greenhouse Gas reduction mandates unless we make it easier to construct the Clean Energy facilities necessary for us to do so.
But there's nothing any State Governor can do about the current leaning of the nation's highest court.
As I've said before, either we believe what the scientists are telling us about the effect Greenhouse Gases are having on our planet or we don't. Believing them has caused the Federal and State Governments to spend hundreds of billions of dollars to expedite a transition to renewable energy, including energy generated by wind. Even with that once in a lifetime stimulus, wind energy projects are challenged, so much so that the would be developers of the Commonwealth Wind and Mayflower Wind projects pulled the plug on them until they can negotiate better terms.
Vineyard Wind is happening despite the drag caused by ACKRat and others but, as Mr. Miller and his band said, time keeps on slipping so we should all be letting our elected members of Congress know that we need them to now do what is necessary to eliminate that drag.
