Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management

100 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: April 24, 2024
• Docket: 23-1501
• Status: Published

Opinion

United States Court of Appeals For the First Circuit No. 23-1501

NANTUCKET RESIDENTS AGAINST TURBINES; VALLORIE OLIVER,

Plaintiffs, Appellants,

v.

U.S. BUREAU OF OCEAN ENERGY MANAGEMENT; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; NATIONAL MARINE FISHERIES SERVICE; DEBRA HAALAND, Secretary of the Interior; GINA M. RAIMONDO, Secretary of Commerce; VINEYARD WIND 1, LLC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Kayatta, Lynch, and Gelpí, Circuit Judges.

Thomas Stavola, Jr. for appellants. Thekla Hansen-Young, with whom Todd Kim, Assistant Attorney General, Environment & Natural Resources Division, U.S. Department of Justice, Luther L. Hajek, Perry Rosen, Mark Arthur Brown, Angela Ellis, Kevin W. McArdle, Pedro Melendez-Arreaga, Assistant Solicitor, U.S. Department of the Interior, Stephen R. Vorkoper, Lea Tyhach, Attorney Advisor, Office of General Counsel, National Oceanic and Atmospheric Administration, and Scott Farley were on brief, for the federal appellees. Peter R. Steenland, with whom David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, Brooklyn Hildebrandt, Jack W. Pirozzolo, and Sidley Austin LLP were on brief, for appellee Vineyard Wind 1, LLC. April 24, 2024 KAYATTA, Circuit Judge. After consulting with the

National Marine Fisheries Service ("NMFS"), the U.S. Bureau of

Ocean Energy Management ("BOEM") approved the construction of

Vineyard Wind, a wind power project off the coast of Massachusetts.

A group of Nantucket residents -- organized as Nantucket Residents

Against Turbines ("Residents") -- allege that the federal agencies

violated the Endangered Species Act by concluding that the

project's construction likely would not jeopardize the critically

endangered North Atlantic right whale. The Residents further

allege that BOEM violated the National Environmental Policy Act by

relying on NMFS's flawed analysis.

We disagree. NMFS and BOEM followed the law in analyzing

the right whale's current status and environmental baseline, the

likely effects of the Vineyard Wind project on the right whale,

and the efficacy of measures to mitigate those effects. Moreover,

the agencies' analyses rationally support their conclusion that

Vineyard Wind will not likely jeopardize the continued existence

of the right whale. We therefore affirm the judgment of the

district court. Our reasoning follows.

I.

A.

This case lies at the intersection of four federal

environmental statutes: (1) the Outer Continental Shelf Lands Act

("OCSLA"), (2) the Endangered Species Act ("ESA"), (3) the Marine

- 3 - Mammal Protection Act ("MMPA"), and (4) the National Environmental

Policy Act ("NEPA").

1.

OCSLA authorizes the Secretary of the Interior to issue

leases for offshore wind development. 43 U.S.C. § 1337(p)(1)(C).

The Secretary has delegated her leasing authority to BOEM. 30

C.F.R. § 585.100. Before issuing an offshore lease, BOEM must

"coordinate and consult with relevant [f]ederal agencies," and it

must comply with the consultation requirements of other federal

environmental statutes, such as the ESA. Id. § 585.203.

Once BOEM issues an offshore lease, its work is not done.

The agency must also approve a site assessment plan and a

construction and operations plan. See id. §§ 585.605, 585.620.

The construction and operations plan must describe "all planned

facilities that [the lessee] will construct and use," as well as

"all proposed activities including [the lessee's] proposed

construction activities, commercial operations, and conceptual

decommissioning plans." Id. § 585.620(a)–(b). No construction

may begin until BOEM approves the construction and operations plan.

Id. § 585.620(c).

2.

Under section 7 of the ESA, a federal agency must consult

with NMFS whenever an agency action "may affect" an endangered

marine species like the right whale. 50 C.F.R. § 402.14(a); 16

- 4 - U.S.C. § 1536(a)(2); see also 35 Fed. Reg. 18319, 18320 (Dec. 2,

1970) (declaring the right whale an endangered species). A

section 7 consultation ends with NMFS issuing a biological

opinion. 16 U.S.C. § 1536(b)(3)(A). In that opinion, NMFS must

determine if the agency action is "likely to jeopardize the

continued existence" of the endangered species. 50 C.F.R.

§ 402.14(h)(iv). NMFS must reach this determination after

reviewing the "best scientific and commercial data available."

Id. § 402.14(g)(8).

Section 9 of the ESA generally prohibits the "take" of

an endangered species. 16 U.S.C. § 1538(a)(1)(B). To "take" an

endangered species means "to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect," the species, or "to

attempt . . . any such conduct." Id. § 1532(19). Relevant here

are so-called "incidental takes." These are takes that "result

from, but are not the purpose of," an agency's or applicant's

otherwise lawful activity. 50 C.F.R. § 402.02.

Some incidental takes are allowed. 16 U.S.C.

§ 1536(b)(4), (o). As relevant here, incidental take approval

requires NMFS to issue an "incidental take statement" along with

the biological opinion. 50 C.F.R. § 402.14(i); 16 U.S.C.

§ 1536(b)(4). That statement must, among other things,

(1) describe the extent of the anticipated incidental take;

(2) outline reasonable measures to reduce and monitor such take;

- 5 - and (3) incorporate measures to comply with section 101(a)(5) of

the MMPA. See 50 C.F.R. § 402.14(i)(1).

3.

When the animal to be taken is an endangered marine

mammal, NMFS may not "issue an incidental take

statement . . . under the ESA until the take has been authorized

under the MMPA. The incidental take statement must incorporate

any mitigation measures required under the MMPA." Ctr. for Bio.

Diversity v. Bernhardt, 982 F.3d 723, 742 (9th Cir. 2020) (internal

citations omitted).

Like the ESA, the MMPA regulates actions that "harass"

endangered species. See 16 U.S.C. §§ 1362(13), 1372(a). Under

the MMPA, there are two types of harassment. Level A harassment

is "any act of pursuit, torment, or annoyance" that has the

"potential to injure a marine mammal or marine mammal stock in the

wild." Id. § 1362(18)(A)(i), (18)(C). Level B harassment is less

serious, and encompasses "any act of pursuit, torment, or

annoyance" that has the "potential to disturb a marine mammal or

marine mammal stock in the wild by causing disruption of behavioral

patterns." Id. § 1362(18)(A)(ii), (18)(D). NMFS may authorize

the incidental harassment of a protected marine mammal if it makes

- 6 - certain factual findings.1 See 16 U.S.C. §§ 1373, 1374. This

permission is called an incidental harassment authorization.

4.

Finally, there is NEPA. When a major federal agency

action will have significant environmental effects, NEPA requires

that the acting agency draft an environmental impact statement.

See 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.3. That statement must

analyze, among other things, the "reasonably foreseeable

environmental effects" of the proposed action, the "reasonable

range of [technically and economically feasible] alternatives" to

the proposed action, and reasonable measures to mitigate the

environmental effects of the proposed action. 42 U.S.C. § 4332(C);

see also Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1286 (1st

Cir. 1996). When considering the effects of a proposed agency

action on an endangered species, the environmental impact

statement may rely on, or incorporate the findings of, a biological

opinion. See City of Tacoma v. FERC, 460 F.3d 53, 75–76 (D.C.

Cir. 2006).

1 The necessary findings will depend on the endangered marine mammal. See 16 U.S.C. § 1373(a) (requiring the Secretary of the Interior to prescribe regulations governing take of "each species of marine mammal as he deems necessary and appropriate"); id. § 1374(b)(1) (mandating that any permit for taking an endangered marine mammal comply with any applicable regulation promulgated under section 1373).

- 7 - NEPA is a procedural statute. It "does not mandate

particular results, but simply prescribes the necessary process"

for evaluating an agency action's environmental effects.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989). If an environmental impact statement sufficiently

analyzes the likely environmental effects of a proposed agency

action, the agency can still proceed on the grounds that "other

values outweigh the environmental costs." Id.

B.

In 2014, BOEM made a small portion of the Massachusetts

Wind Energy Area -- a section of the Outer Continental Shelf --

available for lease. See 79 Fed. Reg. 34771 (June 18, 2014). One

year later, the agency leased a plot measuring 675 square

kilometers to Vineyard Wind 1, LLC.

In 2017, Vineyard Wind submitted a construction and

operations plan, proposing to build an offshore wind project in

the northern portion of the lease area (the "wind development

area"). The wind development area is located approximately

fourteen miles southeast of Martha's Vineyard, and it will host

turbines capable of generating approximately 800 megawatts of

clean wind energy. That is enough energy to power 400,000 homes.

The federal agencies then began the environmental review

process. In 2018, BOEM requested consultation with NMFS pursuant

to section 7 of the ESA. Consultation began in April 2019. NMFS

- 8 - issued its first biological opinion in September 2020, finding

that the Vineyard Wind project would likely not jeopardize the

continued existence of the right whale. The opinion also outlined

mitigation measures to reduce the project's effects on the right

whale. After new science became available, NMFS reinitiated

consultation, eventually issuing an updated biological opinion in

October 2021. The updated opinion also found that the project

would likely not jeopardize the right whale's continued existence.

Both the 2020 and 2021 versions of the biological opinion included

incidental take statements. Those statements both concluded that,

once Vineyard Wind adopted appropriate mitigation measures, the

maximum anticipated take from project construction was Level B

harassment -- caused by installation noise -- of twenty right

whales.

BOEM issued its final environmental impact statement in

March 2021. The environmental impact statement included its own

analysis of how the proposed project would affect right whales and

other marine mammals. It also included an appendix of mitigation

measures.

In June 2021, relying on BOEM'S final environmental

impact statement, NMFS published notice of its decision to issue

an incidental harassment authorization for Level B harassment of

up to twenty right whales. The Residents do not challenge the

- 9 - incidental harassment authorization, which is the subject of a

separate appeal before this court.

One month later, in July 2021, BOEM formally approved

the Vineyard Wind construction and operations plan. Because NMFS's

updated biological opinion was still pending at the time, BOEM's

approval was subject to any new conditions or mitigation measures

later identified in the updated biological opinion. In the

meantime, BOEM's approval notice imposed the mitigation measures

discussed in the environmental impact statement and the 2020

biological opinion. Several of those measures are relevant here:

• Seasonal restrictions: Vineyard Wind may not

conduct any pile driving between January 1 and

April 30. Right whales are more likely to be

present in the lease area during this time of year.

• Noise attenuation: Vineyard Wind must install

technology that reduces the distance that pile

driving noise can travel underwater.

• Soft start requirements: Vineyard Wind must

precede pile driving with "three strikes from the

impact hammer at reduced energy, followed by a 1-

minute waiting period." This process must take

place three times before pile driving, so whales

have time to leave the area.

- 10 - • Clearance and shutdown zones: Vineyard Wind must

determine that no whales are within the clearance

zone before pile driving may begin, and it must

immediately suspend pile driving if a whale enters

the shutdown zone. The precise size of the

clearance zone depends on several factors, such as

time of year and type of foundation being

installed. The radius of the shutdown zone is

3.2 kilometers for all foundation types.

• Protected species observers: Vineyard Wind must

employ trained observers to watch for whales in the

clearance and shutdown zones.

• Passive acoustic monitoring: Vineyard Wind must

install monitoring technology to detect whale noise

within the clearance and shutdown zones.

• Vessel speed limits: Project vessels must travel

at ten or fewer knots while going to, from, or

within the wind development area. Vessels carrying

crew members may go faster, but they must use

species observers and acoustic monitoring to watch

for whales. If the crew vessels detect a whale,

all vessels must obey the ten-knot speed limit for

the rest of the day.

- 11 - BOEM also imposed various post-construction mitigation

measures. Among other things, Vineyard Wind must clean up the

installation sites, monitor the health of the seabed and local

plankton populations, monitor operational noise for at least three

years, and share survey data with both indigenous tribes and the

federal government.

In January 2022, after approving construction of

Vineyard Wind, BOEM expressly adopted the findings of the updated

October 2021 biological opinion. Given the similarity between the

2020 and 2021 versions of the biological opinion, BOEM concluded

that "no further action [was] required in order for Vineyard Wind

to proceed with construction and operation of the [wind project]."

C.

In August 2021, the Residents challenged BOEM's approval

of Vineyard Wind in the District of Massachusetts. The Residents

alleged that NMFS had violated the ESA by issuing a deficient

biological opinion about Vineyard Wind's effects on the right

whale. They further alleged that BOEM violated NEPA by failing to

take the requisite "hard look" at Vineyard Wind's environmental

impacts, and by relying on the allegedly defective updated

biological opinion. The district court granted summary judgment

to the federal agencies on all claims. The Residents appealed.

In their main brief on appeal, the Residents focus

exclusively on alleged errors in NMFS's updated biological

- 12 - opinion. They challenge BOEM's environmental impact statement

only to the extent it relied on that opinion. We train our review

accordingly, treating as waived any other independent challenges

to the environmental impact statement. See Rife v. One W. Bank,

F.S.B., 873 F.3d 17, 19 (1st Cir. 2017) (explaining that arguments

not raised or properly developed in the opening brief are waived).

Thus, we construe the Residents as arguing on appeal that (1) NMFS

violated the ESA by issuing a flawed biological opinion,2 and

(2) BOEM violated NEPA by relying on NMFS's ostensibly flawed

biological opinion.

II.

We review the district court's grant of summary judgment

de novo. Dubois, 102 F.3d at 1283. Summary judgment is

appropriate if there is "no genuine issue as to any material fact

and . . . the moving party is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(c).

We review biological opinions under § 706 of the

Administrative Procedure Act.3 See Pac. Coast Fed. of Fishermen's

Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th

Cir. 2005); Strahan v. Linnon, No. 97–1787, 1998 WL 1085817, at *2

2 For the remainder of this opinion, the phrase "biological opinion" will refer to NMFS's updated 2021 biological opinion, unless otherwise specified. 3 The same goes for environmental impact statements. See Dubois, 102 F.3d at 1284.

- 13 - (1st Cir. July 16, 1998) (per curiam) (unpublished). As a result,

we have a "narrow role to play." Dist. 4 Lodge of the Int'l Ass'n

of Machinists & Aerospace Workers Loc. Lodge 207 v. Raimondo, 18

F.4th 38, 44 (1st Cir. 2021). We may set aside "an otherwise

proper agency action if [the action] is arbitrary and capricious

or . . . not based on substantial evidence." Id. (citing 5 U.S.C.

§ 706(2)(A), (E)). This standard of review is deferential,

especially when the agency action involves "technical or

scientific matters within the agency's area of expertise."

Citizen's Awareness Net., Inc. v. U.S. Nuclear Reg. Comm'n, 59

F.3d 284, 290 (1st Cir. 1995). To survive judicial review, the

agency need only show that it has "considered the relevant factors

and articulated a rational connection between the facts found and

the choice made." Balt. Gas & Elec. Co. v. Nat. Res. Def. Council,

Inc., 462 U.S. 87, 105 (1983); see also Motor Vehicle Mfrs. Ass'n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Meanwhile, when reviewing a lead agency's reliance on a

consulting agency's biological opinion, we must ask whether the

reliance itself was arbitrary and capricious. See City of Tacoma,

460 F.3d at 75. Reliance can be arbitrary and capricious if the

underlying biological opinion was deficient, or if the agency

blindly adopted the biological opinion without conducting its own

independent investigation. Id. at 75–76.

- 14 - III.

The Residents' critiques of the biological opinion upon

which BOEM's environmental impact statement relied fall into three

buckets. First, the Residents allege that the biological opinion

failed to properly analyze the current status and environmental

baseline of the right whale. Second, they allege that the

biological opinion ignored the effects of the Vineyard Wind project

on right whales, while relying on flawed measures to mitigate those

effects. Third, they allege that the biological opinion ignored

the project's additive effects on the right whale's long-term

recovery prospects.

We address each contention in turn.

A consulting agency's biological opinion must

"[e]valuate the current status and environmental baseline" of the

affected endangered or threatened species. 50 C.F.R.

§ 402.14(g)(2). The phrase "environmental baseline" refers to the

"condition of the listed species . . . without the

consequences . . . caused by the proposed action." Id. § 402.02.

NMFS must root this evaluation in the best available commercial

and scientific data. Id. § 402.14(g)(8).

The Residents claim that the biological opinion ignored

the best available data about the right whale's current status and

- 15 - environmental baseline. They give three examples to support this

argument. None of them is persuasive.

The Residents argue that the biological opinion ignored

a recent study -- the Quintana-Rizzo study -- that highlighted the

growing importance of southern New England waters for right whale

survival. Specifically, the Residents point to Quintana-Rizzo's

findings that right whales are "becoming more reliant" on southern

New England waters, and that certain spots in southern New England

waters are "hotspot[s]" for whales to feed and socialize.

The record belies this challenge to the biological

opinion. The opinion expressly acknowledged the growing

importance of southern New England waters for right whales. For

instance, the opinion noted that, as global temperatures have

ticked up, "the location of feeding grounds has shifted,

with . . . more [right whales] being observed in Cape Cod

Bay . . . and south of Nantucket." The biological opinion also

expressly cited Quintana-Rizzo for the proposition that waters off

Rhode Island and Massachusetts "could be a feeding location for

whales that stay in the mid-Atlantic and north during the winter-

spring months and a stopover site for whales migrating to and from

calving grounds." Finally, the biological opinion again cited

Quintana-Rizzo to note that right whales "have been increasingly

sighted" in waters off the coast of Massachusetts. Thus, NMFS

- 16 - repeatedly acknowledged that right whales are increasingly present

in southern New England waters.4

Furthermore, the biological opinion cited Quintana-Rizzo

to note that certain "'hotspots' of higher use" had emerged in

southern New England waters. But NMFS also noted Quintana-Rizzo's

finding that whales have only used hotspots located in the project

area during the spring, when pile driving is banned. So, nothing

in Quintana-Rizzo's hotspot analysis rendered unreasonable the

agency's conclusion that Vineyard Wind likely did not imperil the

long-term survival of the right whale by interfering with

"hotspots" in southern New England.

The Residents next point to a chart in Quintana-Rizzo

that illustrates a high rate of right whale sightings in the

Massachusetts and Rhode Island Wind Energy Areas during August

2019. Broadly, Quintana-Rizzo looked at aerial survey data

collected between 2011–2015 and 2017–2019. And in most surveyed

years, sighting rates were highest between January and April, when

pile driving for the Vineyard Wind project is banned. But in

August 2019, there was a spike in sighting rates. According to

4 The Residents also suggest, in passing, that NMFS ignored another study -- Hayes 2021 -- that emphasized the importance of southern New England for the right whale. Because we find that the biological opinion expressly considered that phenomenon, we need not analyze Hayes 2021 individually.

- 17 - the Residents, NMFS ignored the implication of this spike -- that

right whales are increasingly present during a month (August) when

pile driving is allowed. Thus, on the Residents' view, NMFS

inadequately analyzed the current status and environmental

baseline of the right whale.5

We disagree. In the biological opinion, NMFS concluded

that the "best available information regarding marine mammal

densities in the project area is provided by habitat-based density

models" produced by a laboratory at Duke University. According to

those models, right whales were most likely to be in the project

area between January and April, with minimal presence in August.

The agency then concluded that Quintana-Rizzo -- even though it

relied on aerial surveys rather than habitat modeling -- was

consistent with the habitat-based models. Indeed, Quintana-Rizzo

found consistently high sighting rates during the January–April

period, with a solitary outlier in August 2019. Thus, it was

hardly unreasonable for NMFS to conclude that January–April was

still the most popular timeframe for right whales in the project

area.

5The Residents also make this point to argue against the efficacy of seasonal restrictions as a mitigation measure. Our analysis here refutes that argument as well. We discuss the Residents' other challenges to Vineyard Wind's mitigation measures later in this opinion.

- 18 - At bottom, the Residents are basically arguing that NMFS

should have weighed Quintana-Rizzo's August 2019 finding more

heavily than it did. But courts must "exercise great deference

when [evaluating] claims about competing bodies of scientific

research." See Nat'l Ass'n of Mfrs. v. EPA, 750 F.3d 921, 924

(D.C. Cir. 2014). NMFS concluded that habitat-based density models

were the best available science on right whale distribution

patterns. The Residents have not shown that this conclusion --

which itself "deserv[es] deference" -- was unreasonable. See

Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d

1257, 1265 (11th Cir. 2009) (citing Marsh v. Or. Nat. Res. Council,

490 U.S. 360, 377–78 (1989)). NMFS then concluded that Quintana-

Rizzo was consistent with the habitat-based density models. And

based on our review of Quintana-Rizzo, we cannot say that this

conclusion "jumped the rails of reasonableness." Nat'l Ass'n of

Mfrs., 750 F.3d at 924. Accordingly, the agency's decisionmaking

survives review.

The Residents also argue that NMFS ignored data from two

other studies -- Pettis 2021 and Hayes 2021. Both studies are

annually updated assessments of right whale population and

mortality trends. The Residents claim that NMFS ignored Pettis

2021's finding that whale deaths are outnumbering whale births,

while dismissing Hayes 2021's finding that right whales have low

- 19 - resilience to human-induced mortality. The Residents are mistaken

once again.

Citing an earlier version of Pettis 2021 (i.e., Pettis

2020), the biological opinion clearly acknowledged that "numbers

of births are well below the number needed to compensate for

expected mortalities." And the opinion cited Pettis 2021 for the

proposition that whale births are less frequent because they now

occur (on average) every 7.6 years, which is an increase from

historic calving intervals of 3–5.8 years. Thus, NMFS

acknowledged the very finding in Pettis 2021 that the Residents

claim went unacknowledged: that right whales face long-term

population decline.

The Residents' claims about Hayes 2021 fare no better.

While the biological opinion cites extensively to Hayes 2021, the

Residents complain that the agency did not cite the study for the

proposition that the right whale has a potential biological removal

of 0.8,6 and is therefore susceptible to human-induced mortality.

However, the biological opinion plainly acknowledges that the

right whale's "resilience to future perturbations is expected to

be very low." Elsewhere, the biological opinion also describes

6 Potential biological removal means the "maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population." 16 U.S.C. § 1362(20).

- 20 - the right whale's population size as "small enough for the death

of any individual to have measurable effects."

So, the biological opinion plainly discussed the unique

vulnerability of the right whale population to human-induced

mortality. Even if the agency did not explicitly cite Hayes 2021

to support that proposition, this does not render the biological

opinion's findings arbitrary and capricious. What matters is that

the agency recognized and acknowledged the phenomenon -- low

resilience to the human-caused death of just one whale -- that

Hayes 2021 identified.7

The Residents next take aim at the biological opinion's

analysis of Vineyard Wind's effects on right whales, and its

related conclusion that certain measures could mitigate those

effects. The Residents' arguments address four of Vineyard Wind's

potential effects on right whales: (1) construction noise;

(2) operational noise; (3) line entanglement; and (4) vessel

strikes. We address each in turn.

7 To the extent the Residents are arguing that NMFS had to cite Hayes 2021's precise finding that right whales had a potential biological removal of 0.8, that argument is waived. The district court found that the Residents had not provided adequate notice of this argument in their notice of intent to sue, and the Residents do not challenge that holding on appeal. Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Mgmt., 675 F. Supp. 3d 28, 54–55 (D. Mass. 2023).

- 21 - 1.

The Residents argue that the biological opinion

improperly analyzed the impact of construction noise (i.e., pile

driving) on right whales. Basically, they argue that pile driving

is guaranteed to cause Level A harassment, even though the

biological opinion found that such harassment was "extremely

unlikely."

The Residents' argument proceeds in three parts. First,

they assert that a whale is subject to Level A harassment from

construction noise when it is within 7.25 kilometers of the

construction site. Second, they note that the shutdown zone --

that is, the zone in which pile driving must cease if a right whale

is spotted -- only extends 3.2 kilometers from the site. The

Residents suggest this zone is too small, because a whale can

linger in the noisy zone (and thereby suffer Level A harassment)

without triggering a shutdown. Third, the Residents claim that

the measures to detect a whale in either the shutdown zone or the

broader noisy zone are only marginally effective. So, the

Residents argue, Level A harassment of at least one whale is

effectively guaranteed, despite the biological opinion's contrary

finding.

Each link in the Residents' logical chain is flawed.

First, the Residents' foundational premise is wrong.

Level A harassment does not automatically occur when a whale is

- 22 - within 7.25 kilometers of pile driving. The Residents

fundamentally misread the relevant section of the biological

opinion. As the government correctly notes in its brief, the

"7.25-kilometer area corresponds to the area where Level A

harassment . . . would result after cumulative exposure during a

24-hour period in which [a jacket foundation was] installed,"8 and

where the only minimization measure was 6-dB sound attenuation.

(Emphasis added). In other words, a whale within 7.25 kilometers

of jacket foundation pile driving could only experience Level A

harassment if it remained in that zone throughout the installation

process, and if Vineyard Wind only used one minimization measure.

Under those same conditions, immediate Level A harassment would

only occur during jacket foundation installation if a right whale

got within four meters of the pile driver. The Residents never

assert that this is likely to happen.

Second, the Residents' challenge to the size of the 3.2-

kilometer shutdown zone is moot to the extent it applies to jacket

foundation installation. An appeal is moot if the reviewing court

"cannot affect the matter in issue or cannot grant effectual

relief." In re Cont. Mortg. Invs., 578 F.2d 872, 877 (1st Cir.

8 As the government's brief explains, Vineyard Wind uses pile driving to install two types of foundation. Monopile foundations are for wind turbine generators, and they require "a single pile driven into the ground." Jacket foundations are for support infrastructure and electrical service platforms. They require "three or four smaller piles driven into the ground."

- 23 - 1978). Here, Vineyard Wind has completed all jacket foundation

pile driving. There is no indication that it will resume. So,

even if NMFS violated the ESA by relying on a 3.2-kilometer

shutdown zone to mitigate noise-related take from jacket

foundation installation (an issue we expressly do not decide), we

can no longer grant any injunctive relief that would remedy that

violation. See Ogunquit Vill. Corp. v. Davis, 553 F.2d 243, 245–

47 (1st Cir. 1977) (finding that the court was "unable to fashion

a [generally applicable] remedy" for NEPA violations once the

challenged project had been completed, and further stating that

the responsibility for crafting such a remedy lay with Congress).

The Residents retort that NMFS's alleged violation of

the ESA falls under the mootness exception for claims "capable of

repetition, yet evading review." But this exception applies only

when: "(1) the challenged action was in its duration too short to

be fully litigated prior to its cessation or expiration, and (2)

there [is] a reasonable expectation that the same complaining party

[will] be subjected to the same action again." Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam). There is no

reasonable expectation that Vineyard Wind will install jacket

foundations at the same location again. Accordingly, the exception

does not apply, and the Residents' challenge to the 3.2-kilometer

- 24 - exclusion zone -- as it pertains to jacket foundation installation

-- is moot.9

Because the jacket foundations are complete, the only

remaining pile driving involves monopile foundations. So, could

the Residents simply apply their "shutdown zone is too small"

argument to monopile foundation installation? The answer is no.

According to the biological opinion, the cumulative Level A

harassment threshold for monopile foundation installation

(assuming 6-dB noise attenuation) is just under 3.2 kilometers.

In other words, the standard 3.2-kilometer shutdown zone

completely covers the area in which a right whale could be subject

to cumulative Level A harassment from monopile foundation

installation. So, if a right whale is detected in the zone

affected by monopile foundation installation noise, a shutdown is

mandatory.

Therefore, the Residents' only remaining argument is

that NMFS's proposed mitigation measures cannot reliably detect a

whale within the 3.2-kilometer shutdown zone around monopile

9 The Residents also assert that their claims fall under a mootness exception for issues of "great public import." But they cite only California state case law to support the existence of such an exception. The Residents do not identify -- nor could we find -- any controlling federal case that has recognized a "public importance" exception to the mootness doctrine. And this makes sense. Federal courts may only decide live "Cases" or "Controversies." See U.S. Const. art. III, § 2. Where no actual controversy exists, a federal court may not offer an advisory opinion. Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003).

- 25 - installation. And that brings us to the third faulty link in the

Residents' logic. The Residents cite no record data for the

proposition that NMFS's proposed mitigation measures -- soft start

procedures, protected species observers, and passive acoustic

monitoring -- are ineffective at deterring a whale from, or

detecting a whale within, the 3.2-kilometer shutdown zone.

The biological opinion found that soft start procedures

-- which require Vineyard Wind to precede pile driving with quieter

strikes that give right whales time to swim away -- were "expected

to reduce [the] effects" of pile driving noise on right whales.

The Residents retort that the biological opinion found no evidence

that soft start procedures were effective. But once more, the

Residents misapprehend the biological opinion's plain language.

NMFS expressly stated that soft start procedures would

"likely . . . reduce the duration of exposure to noise that could

result in Level A or Level B harassment." The agency then stated

that it could not precisely quantify the effect of soft start

procedures on right whale take. So, the agency opted for a

conservative approach, and did not "modify the estimated take

numbers to account for any benefit provided by the soft start."

Read in context, then, the biological opinion did not reflect a

lack of confidence in soft start procedures. Instead, it reflected

NMFS's cautious approach to calculating incidental take.

- 26 - The biological opinion also found that acoustic

monitoring and protected species observers, deployed in concert,

are "highly effective." In response, the Residents' brief cites

data from Natural Resources Defense Council v. Pritzker, 62 F.

Supp. 3d 969 (N.D. Cal. 2014).10 That case reviewed an NMFS rule

approving the United States Navy's use of low frequency sonar

during peacetime training and testing operations. Pritzker, 62 F.

Supp. 3d at 979. Among other things, the challenged final rule

concluded that passive acoustic monitoring had a "25 percent

detection probability" with respect to marine mammals, while

visual monitoring by protected species observers had a "nine

percent detection probability." Id. at 996 (quoting 77 Fed. Reg.

50290, 50307 (Aug. 20, 2012)). Thus, the Residents argue, NMFS's

proposed mitigation measures are at best 34 percent effective

(25 percent plus 9 percent), which is purportedly too low to

justify NMFS's confidence that construction noise is highly

unlikely to cause Level A harassment to right whales.

We leave aside the broader question of whether a

34 percent detection probability is indeed too low to avoid Level A

harassment. We also leave aside the fact that Pritzker is a

decade-old, vacated district court decision involving an entirely

10 The district court's decision in Pritzker was later reversed and remanded by the Ninth Circuit. See Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125, 1142 (9th Cir. 2016).

- 27 - different project. The Residents' argument fails for a more

fundamental reason: The Residents never brought the Pritzker data

to the agencies' attention. As the government notes, the Residents

never flagged the Pritzker data in their comment letters or notice

of intent to sue. And the Residents do not contend otherwise.

Accordingly, we cannot consider the Pritzker data for the first

time on review.11 See, e.g., Camp v. Pitts, 411 U.S. 138, 142

(1973) (per curiam) (noting that in a case applying the

Administrative Procedure Act, "the focal point for judicial review

should be the administrative record already in existence, not some

new record made initially in the reviewing court"); United States

v. L.A. Trucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)

(describing the "general rule" that "courts should not topple over

administrative decisions unless the administrative body . . . has

erred against objection made at the time appropriate under its

practice").

In sum, the Residents cannot show that NMFS's conclusion

that operational noise from Vineyard Wind was unlikely to subject

any right whale to Level A harassment was arbitrary and capricious.

Accordingly, their challenge under the ESA must fail.

11The Residents also cite Native Village of Chickaloon v. NMFS, 947 F. Supp. 2d 1031 (D. Alaska 2013) to argue that passive acoustic monitoring is ineffective. We reject this argument for the same reason we reject the Residents' reliance on Pritzker.

- 28 - 2.

The Residents next argue that NMFS irrationally

dismissed a study (Stober 2021) that analyzed the effects of wind

turbine operational noise on right whales.

The Residents entirely ignore the biological opinion's

extensive analysis of Stober 2021. After detailing the study's

methodology, NMFS gave four reasons for limiting its reliance on

the study. First, the study itself acknowledged "unresolved

uncertainty in [its] methods." Second, the study's estimates of

operational noise for the turbines that Vineyard Wind would use

were "just a prediction and . . . not based on an in situ

evaluation of underwater noise of a 10 MW direct-drive turbine."12

Third, Stober 2021 did not consider contextual factors that could

alter how turbine noise moved through water, such as "water depth,

sediment type, [and] wind speed." Fourth, Stober 2021 itself

suggested that turbine operational noise "may not be detectable

above ambient noise," undermining the argument that operational

noise would harass nearby marine mammals.

Given these limitations, the biological opinion instead

relied on operational noise measurements from a wind farm off Block

Island. The agency's determination that these measurements were

12Contrary to the Residents' assertions, NMFS did not dismiss Stober 2021 on the grounds that it only analyzed older gearbox turbines. The agency expressly acknowledged that the study evaluated the "direct-drive turbines" deployed by Vineyard Wind.

- 29 - the best available science commands deference. See Miccosukee

Tribe, 566 F.3d at 1265. And the Residents scarcely engage with

the agency's stated rationale for relying on the Block Island data

rather than Stober 2021. Accordingly, we will not substitute our

judgment for that of the expert agency. See Nat'l Ass'n of Mfrs.,

750 F.3d at 924.

The Residents next argue that the biological opinion

ignored two phenomena that heighten the risk of right whales dying

from entanglement in fishing lines.

First, the Residents claim that the biological opinion

ignored the entanglement risk from lines that Vineyard Wind will

install to perform fishery studies. This is simply not true. The

biological opinion expressly considered the risk of entanglement

in those lines. It found such entanglement "extremely unlikely,"13

given the low density of whales during the period when Vineyard

Wind will conduct fishery studies; the small number of fishing

lines; the short duration of the proposed fishery studies; and the

tiny territory in which the study will take place. The Residents

13 The Residents cherry-pick this language to suggest that NMFS dismissed as "extremely unlikely" the prospect that a whale would ever die from entanglement in fishing lines. Of course, that is not at all what the biological opinion said. The "extremely unlikely" language refers to the risk of entanglement from the Vineyard Wind fishery studies, not overall entanglement risk within or outside the wind development area.

- 30 - neither acknowledge nor discredit the agency's reasoning on this

front.

Second, the Residents claim that the biological opinion

ignored the best available science on entanglement risk, which

allegedly suggested that construction and operational noise would

drive whales into a fishing area ("Area 537") with densely

concentrated fishing lines. This enforced shift in whale

distribution would, in turn, increase entanglement risk. The

Residents assert that this phenomenon was outlined in a memorandum

-- which NMFS supposedly neglected -- called the Atlantic Large

Whale Take Reduction Team Key Outcomes Memorandum ("TRT Memo").

NMFS considered the broader impact of construction and

operational noise on whale distribution patterns. For example,

the agency examined whether construction noise would drive whales

into parts of Area 537 with more ship traffic. The agency

concluded that this was unlikely, given that pile driving is banned

during months with high whale density. The same logic applies to

the Residents' concern about entanglement risk, because

entanglement is most likely in the January–April period when pile

driving is banned. The biological opinion also found that noise

pollution from the project would not alter the overall distribution

of right whales. The Residents do not challenge these clear

findings.

- 31 - Moreover, NMFS did, in fact, review the TRT Memo. And

nothing in that memo states that construction or operational noise

will drive whales into portions of Area 537 with greater

entanglement risk. The memo simply says that NMFS should consider

fishing closures in Area 537. So, the Residents' fear about

increased entanglement risk is purely speculative. And NMFS was

not required to account for entirely speculative environmental

effects that were neither suggested nor supported by the scientific

evidence. See 50 C.F.R. § 402.14(h)(iii) (biological opinion must

discuss "effects" of proposed action on endangered or threatened

species); id. § 402.02 (the "effect" of a proposed agency action

is a consequence that is "reasonably certain to occur"); see also

Endangered and Threatened Wildlife and Plants; Regulations for

Interagency Cooperation, 84 Fed. Reg. 44976, 44993 (Aug. 27, 2019)

("[T]he determination of a consequence to be reasonably certain to

occur . . . should not be based on speculation or conjecture.").14

After oral argument in this case, the U.S. Fish and 14

Wildlife Service published new regulations revising the definition of "effects of the action" under the ESA. See Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 89 Fed. Reg. 24268 (Apr. 5, 2024) (to be codified at 50 C.F.R. pt. 402). But NMFS and BOEM issued their environmental review documents under the prior regulations, which were published in 2019. We therefore limit our analysis to those earlier regulations.

- 32 - 4.

The Residents then argue that the biological opinion

ignores how the Vineyard Wind project will increase the risk of

vessel strikes on right whales.

The Residents first argue that the ten-knot restrictions

on vessel speed in the wind development area are insufficient,

because crew transfer vessels are exempt. But crew transfer

vessels must include species observers and passive acoustic

monitoring to survey for nearby whales. If a whale is spotted,

the ten-knot speed limit applies to all crew transfer vessels for

the rest of the day. And as discussed above, the Residents have

supplied no adequate ground on which to challenge the efficacy of

passive acoustic monitoring or protected species observers. They

therefore cannot demonstrate that NMFS acted arbitrarily by

relying on those measures to mitigate the risk of vessel strikes.

The Residents also argue that project noise will drive

whales into portions of Area 537 with more vessel traffic. As

already discussed, the biological opinion expressly rejected this

argument. And this is unsurprising -- it is not even clear that

there are areas near the wind development area with substantially

higher vessel traffic. Indeed, as the government notes, the "only

areas outside of the lease [area] with higher vessel traffic are

shipping lanes with commercial traffic located 21 to 30 miles from

the project." The Residents do not explain why any project-related

- 33 - noise disturbance would not dissipate well before a whale had swum

thirty miles away from the wind development area. Thus, the

Residents' concern about project noise increasing vessel strike

risk is speculative, and insufficient to support a challenge under

the ESA.

The Residents next contend that NMFS failed to consider

how the additive effects of the Vineyard Wind project would

jeopardize the continued existence of the right whale. Under the

implementing regulations of the ESA, NMFS must "[a]dd the effects

of the action and cumulative effects to the environmental baseline

and in light of the status of the species and critical habitat,

formulate [an] opinion as to whether the action is likely to

jeopardize the continued existence of" the listed species. 50

C.F.R. § 402.14(g)(4).

The Residents' briefing on this topic breaks little new

ground. Instead, the Residents largely repeat the arguments

detailed above, which we have already found unpersuasive. There

is only one new argument in the Residents' briefing that might be

relevant. The Residents point to language in Quintana-Rizzo, which

suggests that widespread wind farm development in southern New

England could broadly "affect the use of [the] region by right

whales" and influence right whale migration throughout the mid-

Atlantic.

- 34 - These generalized statements do not render the

biological opinion's no-jeopardy conclusion arbitrary and

capricious. As an initial note, Quintana-Rizzo was describing the

potential risks of "[t]he construction and maintenance of hundreds

of wind turbines" throughout southern New England. It was not

specifically analyzing Vineyard Wind. Also, the Quintana-Rizzo

study did not suggest that right whale survival was incompatible

with wind energy development. Instead, it urged policymakers to

implement comprehensive monitoring and mitigation plans. That is

what NMFS did here. And as discussed, the Residents have not

demonstrated that the agency's proposed mitigation measures are

inadequate, or that reliance on those measures was arbitrary and

capricious.

D.

Finally, the Residents argue that BOEM violated NEPA by

relying on NMFS's allegedly defective biological opinion. Recall

that while an agency may rely on the findings in a biological

opinion, such reliance is arbitrary and capricious if (1) the

biological opinion is defective, or (2) the agency blindly relies

on the biological opinion without conducting its own independent

analysis. See City of Tacoma, 460 F.3d at 75–76.

Neither criterion is satisfied here. For the reasons

discussed above, NMFS's biological opinion was not defective.

Therefore, BOEM properly relied on it. Id. Moreover, BOEM did

- 35 - not blindly rely on the biological opinion. Instead, BOEM's

environmental impact statement includes a lengthy analysis of the

Vineyard Wind project's likely effects on right whales.15 As a

result, we cannot conclude that BOEM's reliance on the NMFS

biological opinion violated NEPA. Id.

IV.

For the foregoing reasons, the judgment of the district

court is affirmed.

15 Although the Residents try to challenge portions of that standalone analysis in their reply, they failed to invoke those arguments in their opening brief. So, as discussed above, the Residents' specific challenges to BOEM's environmental impact statement are waived. See Rife, 873 F.3d at 19.

- 36 -