In companion rulings favoring offshore wind developers and federal agencies, the First Circuit Court of Appeals recently affirmed rulings issued by the District Court (D. Mass.) and dismissed challenges brought by two Vineyard Wind opponents concerning the project’s potential impact on the endangered North Atlantic right whale. In both cases, a panel of the same three judges addressed challenges to the administrative procedures followed by the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM) in issuing a biological opinion and an Incidental Harassment Authorization (IHA) for the project that would directly impact the right whale. In two decisions authored by Judge Kayatta analyzing aspects of the federal permit approval process, the Court ruled that the agencies properly evaluated potential impacts to the right whale and did not violate the authorizing statutes or otherwise act arbitrarily or capriciously.
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