Seafreeze Shoreside, Inc. v. US Dep't of the Interior
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Opinion
United States Court of Appeals For the First Circuit _____________________
No. 23-1853 No. 23-2051
SEAFREEZE SHORESIDE, INC.; LONG ISLAND COMMERCIAL FISHING ASSOC., INC.; XIII NORTHEAST FISHERY SECTOR, INC.; HERITAGE FISHERIES, INC.; NAT. W., INC.; OLD SQUAW FISHERIES, INC.,
Plaintiffs, Appellants,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; HONORABLE DEBRA HAALAND, in her official capacity as Secretary of the Department of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT; LIZ KLEIN, in her official capacity as the Director of the Bureau of Ocean Energy Management; LAURA DANIEL-DAVID, in her official capacity as Principal Deputy Assistant Secretary, Land and Minerals Management; UNITED STATES DEPARTMENT OF COMMERCE; HONORABLE GINA M. RAIMONDO, in her official capacity as the Secretary of the Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE; CATHERINE MARZIN, in her official capacity as the Deputy Director of the National Oceanic and Atmospheric Administration; UNITED STATES DEPARTMENT OF DEFENSE; HONORABLE LLOYD J. AUSTIN, III, in his official capacity as the Secretary of the Department of Defense; UNITED STATES ARMY CORPS OF ENGINEERS; LT. GEN. SCOTT A. SPELLMON, in his official capacity as the Commander and Chief of Engineers of the U.S. Army Corps of Engineers; COLONEL JOHN A. ATILANO, II, in his official capacity as the District Engineer of the New England District of the U.S. Army Corps of Engineers; VINEYARD WIND 1, LLC,
Defendants, Appellees, RESPONSIBLE OFFSHORE DEVELOPMENT ALLIANCE, a D.C. nonprofit corporation,
Plaintiff, Appellant,
UNITED STATES DEPARTMENT OF THE INTERIOR; DEBRA HAALAND, in her official capacity as the Secretary of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT; LIZ KLEIN, in her official capacity as the Director of the Bureau of Ocean Energy Management; NATIONAL MARINE FISHERIES SERVICE; RICHARD W. SPINRAD, in his official capacity as the Administrator of the National Oceanic and Atmospheric Administration; UNITED STATES DEPARTMENT OF THE ARMY; CHRISTINE WORMUTH, in her official capacity as Secretary of the Army; UNITED STATES ARMY CORPS OF ENGINEERS; JAMIE A. PINKHAM, in his official capacity as the Acting Assistant Secretary of the Army for Civil Works; VINEYARD WIND 1, LLC,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Gelpí, Montecalvo, and Aframe Circuit Judges.
Theodore Hadzi-Antich, with whom Robert Henneke, Chance Weldon, Connor W. Mighell, and Texas Public Policy Foundation, were on brief for appellants, Seafreeze Shoreside, Inc., et al. Roger J. Marzulla, with whom Nancie G. Marzulla, were on brief for appellant, Responsible Offshore Development Alliance. Thekla Hansen-Young, with whom Todd Kim, United States Assistant Attorney General, United States Department of Justice; Luther L. Hajek, Perry Rosen, Mark Arthur Brown, Angela Ellis, Kevin W. McArdle, Environment and National Resources Division, United States Department of Justice; Stephen R. Vorkoper, Office of the City Solicitor, United States Department of Interior, Lea
- 2 - Tyhach, Scott Farley, National Oceanic and Atmospheric Administration, Office of General Counsel, and Matthew J. Harris, United States Army Corps of Engineers, were on brief for appellees, United States Department of the Interior, et al. Peter R. Steenland, with whom Jack W. Pirozzolo, David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, and Sidley Austin LLP were on brief for, appellee, Vineyard Wind 1, LLC.
December 5, 2024
- 3 - AFRAME, Circuit Judge. These appeals challenge the
federal government's process for approving a plan to construct and
operate a large-scale commercial offshore wind energy facility.1
The facility, which began delivering power to the New England grid
in early 2024, is located on the Outer Continental Shelf, some
fourteen miles south of Martha's Vineyard and Nantucket. The
plaintiffs are entities involved in or associated with the
commercial fishing industry. The defendants are federal
departments, agencies, and officials responsible for the plan
approval process, as well as the business entity that successfully
submitted the proposed plan and is constructing and operating the
facility. The plaintiffs sued to obtain declaratory and injunctive
relief, asserting thirty-nine claims under the Administrative
Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and several
environmental statutes, described below. The district court
entered summary judgment for the defendants on all claims. The
plaintiffs appeal, arguing that the district court erred in
multiple respects. We affirm.
1 The appeals were briefed and argued separately, but we address them together in this opinion. - 4 - I.
A. The Parties
The plaintiffs in case no. 23-1853 are Seafreeze
Shoreside, Inc., a Rhode Island seafood dealer; the Long Island
Commercial Fishing Association, Inc., a trade group representing
New York's commercial fishing industry ("LICFA"); XIII Northeast
Fishery Sector, Inc., a private organization of commercial
fishermen located in the Northeast; and three commercial fishing
companies: Heritage Fisheries, Inc.; Nat. W., Inc.; and Old Squaw
Fisheries, Inc. We refer to these entities collectively as the
"Seafreeze plaintiffs" and to case no. 23-1853 as the "Seafreeze
appeal."
The defendants in the Seafreeze appeal are the
Department of the Interior; the Honorable Debra Haaland, in her
official capacity as Secretary of the Interior; the Bureau of Ocean
Energy Management ("BOEM"); Liz Klein, in her official capacity as
the BOEM's Director; Laura Daniel-David, in her official capacity
as the Interior Department's Principal Deputy Assistant Secretary
of Land and Minerals Management; the Department of Commerce; the
Honorable Gina M. Raimondo, in her official capacity as Secretary
of Commerce; the National Oceanic and Atmospheric Association
("NOAA"); the National Marine Fisheries Service ("NMFS");
Catherine Marzin, in her official capacity as Deputy Director of
the NOAA; the Department of Defense; the Honorable Lloyd J. Austin - 5 - III, in his official capacity as Secretary of Defense; the Army
Corps of Engineers ("the Corps"); Lt. Gen. Scott A. Spellmon, in
his official capacity as the Corps' Commander and Chief of
Engineers; Col. John A. Atilano, II, in his official capacity as
the Corps' District Engineer of the New England District; and
Vineyard Wind 1, LLC, which submitted the approved plan and is
constructing and operating the facility. Vineyard Wind 1 was not
initially sued but successfully intervened as a defendant. We use
"Vineyard Wind" to refer both to the project and its developer.
The plaintiff in case no. 23-2051 is Responsible
Offshore Development Alliance ("Alliance"), a D.C. nonprofit whose
membership includes fishing associations, seafood dealers, seafood
processors, fishing vessels, and affiliated businesses. We refer
to case no. 23-2051 as the "Alliance appeal."
The defendants in the Alliance appeal are the Interior
Department; Secretary Haaland in her official capacity; the BOEM;
Director Klein in her official capacity;2 the NMFS; Richard W.
Spinrad, in his official capacity as the NOAA's Administrator; the
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United States Court of Appeals For the First Circuit _____________________
No. 23-1853 No. 23-2051
SEAFREEZE SHORESIDE, INC.; LONG ISLAND COMMERCIAL FISHING ASSOC., INC.; XIII NORTHEAST FISHERY SECTOR, INC.; HERITAGE FISHERIES, INC.; NAT. W., INC.; OLD SQUAW FISHERIES, INC.,
Plaintiffs, Appellants,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; HONORABLE DEBRA HAALAND, in her official capacity as Secretary of the Department of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT; LIZ KLEIN, in her official capacity as the Director of the Bureau of Ocean Energy Management; LAURA DANIEL-DAVID, in her official capacity as Principal Deputy Assistant Secretary, Land and Minerals Management; UNITED STATES DEPARTMENT OF COMMERCE; HONORABLE GINA M. RAIMONDO, in her official capacity as the Secretary of the Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE; CATHERINE MARZIN, in her official capacity as the Deputy Director of the National Oceanic and Atmospheric Administration; UNITED STATES DEPARTMENT OF DEFENSE; HONORABLE LLOYD J. AUSTIN, III, in his official capacity as the Secretary of the Department of Defense; UNITED STATES ARMY CORPS OF ENGINEERS; LT. GEN. SCOTT A. SPELLMON, in his official capacity as the Commander and Chief of Engineers of the U.S. Army Corps of Engineers; COLONEL JOHN A. ATILANO, II, in his official capacity as the District Engineer of the New England District of the U.S. Army Corps of Engineers; VINEYARD WIND 1, LLC,
Defendants, Appellees, RESPONSIBLE OFFSHORE DEVELOPMENT ALLIANCE, a D.C. nonprofit corporation,
Plaintiff, Appellant,
UNITED STATES DEPARTMENT OF THE INTERIOR; DEBRA HAALAND, in her official capacity as the Secretary of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT; LIZ KLEIN, in her official capacity as the Director of the Bureau of Ocean Energy Management; NATIONAL MARINE FISHERIES SERVICE; RICHARD W. SPINRAD, in his official capacity as the Administrator of the National Oceanic and Atmospheric Administration; UNITED STATES DEPARTMENT OF THE ARMY; CHRISTINE WORMUTH, in her official capacity as Secretary of the Army; UNITED STATES ARMY CORPS OF ENGINEERS; JAMIE A. PINKHAM, in his official capacity as the Acting Assistant Secretary of the Army for Civil Works; VINEYARD WIND 1, LLC,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Gelpí, Montecalvo, and Aframe Circuit Judges.
Theodore Hadzi-Antich, with whom Robert Henneke, Chance Weldon, Connor W. Mighell, and Texas Public Policy Foundation, were on brief for appellants, Seafreeze Shoreside, Inc., et al. Roger J. Marzulla, with whom Nancie G. Marzulla, were on brief for appellant, Responsible Offshore Development Alliance. Thekla Hansen-Young, with whom Todd Kim, United States Assistant Attorney General, United States Department of Justice; Luther L. Hajek, Perry Rosen, Mark Arthur Brown, Angela Ellis, Kevin W. McArdle, Environment and National Resources Division, United States Department of Justice; Stephen R. Vorkoper, Office of the City Solicitor, United States Department of Interior, Lea
- 2 - Tyhach, Scott Farley, National Oceanic and Atmospheric Administration, Office of General Counsel, and Matthew J. Harris, United States Army Corps of Engineers, were on brief for appellees, United States Department of the Interior, et al. Peter R. Steenland, with whom Jack W. Pirozzolo, David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, and Sidley Austin LLP were on brief for, appellee, Vineyard Wind 1, LLC.
December 5, 2024
- 3 - AFRAME, Circuit Judge. These appeals challenge the
federal government's process for approving a plan to construct and
operate a large-scale commercial offshore wind energy facility.1
The facility, which began delivering power to the New England grid
in early 2024, is located on the Outer Continental Shelf, some
fourteen miles south of Martha's Vineyard and Nantucket. The
plaintiffs are entities involved in or associated with the
commercial fishing industry. The defendants are federal
departments, agencies, and officials responsible for the plan
approval process, as well as the business entity that successfully
submitted the proposed plan and is constructing and operating the
facility. The plaintiffs sued to obtain declaratory and injunctive
relief, asserting thirty-nine claims under the Administrative
Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and several
environmental statutes, described below. The district court
entered summary judgment for the defendants on all claims. The
plaintiffs appeal, arguing that the district court erred in
multiple respects. We affirm.
1 The appeals were briefed and argued separately, but we address them together in this opinion. - 4 - I.
A. The Parties
The plaintiffs in case no. 23-1853 are Seafreeze
Shoreside, Inc., a Rhode Island seafood dealer; the Long Island
Commercial Fishing Association, Inc., a trade group representing
New York's commercial fishing industry ("LICFA"); XIII Northeast
Fishery Sector, Inc., a private organization of commercial
fishermen located in the Northeast; and three commercial fishing
companies: Heritage Fisheries, Inc.; Nat. W., Inc.; and Old Squaw
Fisheries, Inc. We refer to these entities collectively as the
"Seafreeze plaintiffs" and to case no. 23-1853 as the "Seafreeze
appeal."
The defendants in the Seafreeze appeal are the
Department of the Interior; the Honorable Debra Haaland, in her
official capacity as Secretary of the Interior; the Bureau of Ocean
Energy Management ("BOEM"); Liz Klein, in her official capacity as
the BOEM's Director; Laura Daniel-David, in her official capacity
as the Interior Department's Principal Deputy Assistant Secretary
of Land and Minerals Management; the Department of Commerce; the
Honorable Gina M. Raimondo, in her official capacity as Secretary
of Commerce; the National Oceanic and Atmospheric Association
("NOAA"); the National Marine Fisheries Service ("NMFS");
Catherine Marzin, in her official capacity as Deputy Director of
the NOAA; the Department of Defense; the Honorable Lloyd J. Austin - 5 - III, in his official capacity as Secretary of Defense; the Army
Corps of Engineers ("the Corps"); Lt. Gen. Scott A. Spellmon, in
his official capacity as the Corps' Commander and Chief of
Engineers; Col. John A. Atilano, II, in his official capacity as
the Corps' District Engineer of the New England District; and
Vineyard Wind 1, LLC, which submitted the approved plan and is
constructing and operating the facility. Vineyard Wind 1 was not
initially sued but successfully intervened as a defendant. We use
"Vineyard Wind" to refer both to the project and its developer.
The plaintiff in case no. 23-2051 is Responsible
Offshore Development Alliance ("Alliance"), a D.C. nonprofit whose
membership includes fishing associations, seafood dealers, seafood
processors, fishing vessels, and affiliated businesses. We refer
to case no. 23-2051 as the "Alliance appeal."
The defendants in the Alliance appeal are the Interior
Department; Secretary Haaland in her official capacity; the BOEM;
Director Klein in her official capacity;2 the NMFS; Richard W.
Spinrad, in his official capacity as the NOAA's Administrator; the
Department of the Army; Christine Wormuth, in her official capacity
as Secretary of the Army; the Corps; Jamie A. Pinkham, in his
2 The case caption lists Amanda Lefton as the BOEM's Director. Director Klein replaced Director Lefton in 2023. - 6 - official capacity as Acting Assistant Secretary of the Army for
Civil Works; and Vineyard Wind.
B. Statutory Background
1. The Seafreeze Appeal
The Seafreeze appeal involves claims pursuant to, inter
alia, the APA and the following environmental statutes:
a. The Outer Continental Shelf Lands Act
The Outer Continental Shelf consists of all submerged
lands beyond those reserved to the States and up to the edge of
the United States' jurisdiction and control. 43 U.S.C.
§ 1331(a)(1). The Outer Continental Shelf Lands Act ("OCSLA")
regulates the federal government's leasing of mineral and energy
resources on these lands. See id. §§ 1331-1356c. The OCSLA
establishes the Outer Continental Shelf as a "vital national
resource reserve" that "should be made available for expeditious
and orderly development, subject to environmental safeguards, in
a manner which is consistent with the maintenance of competition
and other national needs." Id. § 1332(3).
To further these goals, the OCSLA authorizes the
Department of the Interior, in consultation with other federal
agencies and acting through the BOEM, to grant leases on the Outer
Continental Shelf for the purpose of, inter alia, renewable wind
energy production. Id. § 1337(p)(1)(C); 30 C.F.R. § 585.100. When
granting such leases, the BOEM must "ensure that any activity under - 7 - [the OCSLA] is carried out in a manner that provides for" twelve
criteria including, insofar as is relevant, safety; protection of
the environment; conservation of natural resources of the Outer
Continental Shelf; prevention of interference with reasonable uses
of the Outer Continental Shelf (as determined by the Interior
Secretary); and consideration of any other use of the sea or
seabed, including use for fishing and navigation. 43 U.S.C.
§ 1337(p)(4); 30 C.F.R. § 585.102(a).
The BOEM's issuance of a lease does not itself authorize
development of the site. See 30 C.F.R. § 585.200(a). To proceed
to development, a lessee must formulate a site assessment plan,
obtain the BOEM's approval of that plan, and then obtain the BOEM's
approval of a construction and operations plan ("COP"). See
generally id. §§ 585.600, 585.605-607, 585.610-614, 585.620-622,
and 585.626-628. No construction may begin until the BOEM approves
the COP. Id. § 585.620(c).
The OCSLA contains a citizen-suit provision. 43 U.S.C.
§ 1349(a)(1).
b. The National Environmental Policy Act
The BOEM must comply with the National Environmental
Policy Act ("NEPA") when approving a COP. 30 C.F.R. § 585.628.
The NEPA is a procedural statute that requires federal agencies to
take a "hard look" at the environmental impacts of and alternatives
to a proposed action. Beyond Nuclear v. U.S. Nuclear Regul. - 8 - Comm'n, 704 F.3d 12, 19 (1st Cir. 2013). Generally, the vehicle
for the required analysis is an environmental impact statement
("EIS"). See 42 U.S.C. § 4332(C). The EIS must analyze, inter
alia, 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." Nantucket Residents Against Turbines v. U.S.
Bureau of Ocean Energy Mgmt., 100 F.4th 1, 9 (1st Cir. 2024)
(quoting 42 U.S.C. § 4332(C)). The NEPA "'does not mandate
particular results, but simply prescribes the necessary process'
for evaluating an agency action's environmental effects." Id.
(quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989)). This process is designed to prevent uninformed
agency action and to provide information about environmental
impact to the public and other government agencies so that they
have an opportunity to respond. See Town of Winthrop v. FAA, 535
F.3d 1, 4 (1st Cir. 2008).
The NEPA does not contain a citizen-suit provision and
is enforced through the judicial review provisions of the APA.
See Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife
Serv., 674 F.3d 97, 102 (1st Cir. 2012).
- 9 - c. The Endangered Species Act
The BOEM also must comply with the Endangered Species
Act ("ESA") when approving a COP. Section 7 of the ESA requires
agencies to ensure that their actions are "not likely to jeopardize
the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
habitat of such species . . . ." 16 U.S.C. § 1536(a)(2). To this
end, a lead agency (here, the BOEM) must consult with the NMFS
whenever an agency action "may affect" a listed marine species or
critical habitat. 50 C.F.R. § 402.14(a); see also Nantucket
Residents, 100 F.4th at 8. When such a consultation is required,
the NMFS must issue a "biological opinion" stating whether the
contemplated agency action is "likely to jeopardize the continued
existence" of any listed species or "result in the destruction or
adverse modification of critical habitat." 50 C.F.R.
§ 402.14(g)(4), (h). If so, the NMFS also must determine whether
"reasonable and prudent alternatives" are available. Id.
§ 402.14(g)(5). The opinion must be based on the "best scientific
and commercial data available." Id. § 402.14(g)(8); see also 16
U.S.C. § 1536(a)(2).
A lead agency must request reinitiation of consultation
following the NMFS's issuance of a biological opinion if the agency
has retained discretionary involvement in or control over the
contemplated action, and certain other conditions, including new - 10 - information becoming available, are satisfied. See 50 C.F.R.
§ 402.16(a).
Generally, Section 9 of the ESA prohibits the "take" of
an endangered species within the United States or the territorial
seas of the United States. See Nantucket Residents, 100 F.4th at
8; 16 U.S.C. § 1538(a)(1)(B). A "take" includes the harassment of
or harm to the species. Id. § 1532(19). A section 9 prohibition
also can be applied to "threatened" (as opposed to endangered)
species. See 16 U.S.C. § 1533(d).
One form of take is an "incidental take." During
consultation, the NMFS may conclude that proposed agency action is
not likely to jeopardize an endangered or threatened species but
is reasonably certain to incidentally affect the species. In such
a situation, the NMFS issues an "incidental take statement" along
with its biological statement. See id. § 1536(b)(4); 50 C.F.R
§ 402.14(i). An incidental take statement details the extent of
the anticipated take, reasonable and prudent measures to minimize
and monitor it, and the terms and conditions under which such
measures will be implemented. See 16 U.S.C. § 1536(b)(4); 50
C.F.R. § 402.14(i). A take authorized in compliance with the
incidental take statement is exempt from the ESA's take
prohibition. See 16 U.S.C. § 1536(o).
The ESA contains a citizen-suit provision. 16 U.S.C.
§ 1540(g). - 11 - 2. The Alliance Appeal
The Alliance appeal involves claims pursuant to, inter
alia, the APA, the OCSLA, the NEPA, the ESA, and two additional
environmental statutes.
a. The Marine Mammal Protection Act
Congress enacted the Marine Mammal Protection Act
("MMPA") to prevent marine mammals from "diminish[ing] beyond the
point at which they cease to be a significant functioning element
in the ecosystem of which they are a part . . . ." 16 U.S.C.
§ 1361(2). While the MMPA generally prohibits the take (including
the harassment) of marine mammals, id. §§ 1372(a), 1371(a)
1362(13); 50 C.F.R. § 216.3, it permits the NMFS to authorize, for
a period not exceeding one year, the incidental "taking . . . of
small numbers of marine mammals" if it concludes that "such
taking . . . will have a negligible impact on such species," 16
U.S.C. § 1371(a)(5)(D)(i)(I).
Under the MMPA, there are two types of harassment: Level
A and Level B. Relevant here is Level B harassment, which is "'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 behavior patterns.'" Nantucket Residents,
100 F.4th at 9 (quoting 16 U.S.C. § 1362(18)(A)(ii), (18)(D)).
The required contents of an incidental harassment authorization
("IHA"), and the process for obtaining such an authorization, are - 12 - described in 16 U.S.C. § 1371(a)(5)(D)(ii)(I), (II), (III), and 50
C.F.R. § 216.104, respectively.
The MMPA does not contain a citizen-suit provision and
is enforced through the judicial review provisions of the APA.
See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1178 (9th Cir. 2004).
b. The Clean Water Act and the Rivers and Harbors Act
Congress enacted the Clean Water Act ("CWA") "to restore
and maintain the chemical, physical, and biological integrity of
the Nation's waters." 33 U.S.C. § 1251(a). The CWA prohibits the
"discharge of any pollutant" into "navigable waters," including
the "territorial seas," unless done in compliance with the Act.
Id. §§ 1311(a), 1344(a), 1362(7); 33 C.F.R. §§ 328.2, 328.3(a)(1),
328.4(a). The territorial seas generally include waters extending
seaward three nautical miles from the coast but may also include
other waters in contact with the open sea such as waters within
three nautical miles from islands. See 33 U.S.C. § 1362(8); 33
C.F.R. §§ 328.4(a), 329.12(a).
Section 404 of the CWA authorizes the Secretary of the
Army, acting through the Corps, to issue permits for discharges of
dredged or fill material into waters of the United States. 33
U.S.C. §§ 1344, 1362(6)-(7). Permits must be issued in compliance
with both the Corps' permitting regulations, 33 C.F.R. pt. 320,
and regulations jointly developed by the U.S. Environmental
- 13 - Protection Agency ("EPA") and the Corps, known as the "Section
404(b)(1) Guidelines," 40 C.F.R. pt. 230.
The Corps' regulations require that a permitting
decision be based on "an evaluation of the probable impacts,
including cumulative impacts, of the proposed activity and its
intended use on the public interest." 33 C.F.R. § 320.4(a)(1).
Similarly, the Section 404(b)(1) Guidelines require the Corps to
determine the potential impacts, including cumulative impacts, of
proposed discharges. 40 C.F.R. § 230.11. The Section 404(b)(1)
Guidelines also state that the Corps should not issue a permit "if
there is a practicable alternative to the proposed discharge which
would have less adverse impact on the aquatic ecosystem, so long
as the alternative does not have other significant adverse
environmental consequences." Id. § 230.10(a). The purpose of the
analysis required by the Section 404(b)(1) Guidelines is to ensure
that proposed discharges will not have a significant adverse effect
on human health or welfare, aquatic life, aquatic ecosystems, or
recreational, aesthetic, or economic values. See id.
§ 230.10(c)(1).
The Corps also may issue permits to authorize the
installation of structures in navigable U.S. waters more than three
nautical miles from the coast. But it must do so pursuant to
Section 10 of the Rivers and Harbors Act ("RHA"), see 33 U.S.C.
§ 403; 33 C.F.R. §§ 320.2(b) & 322.3(a)-(b), and not the CWA. - 14 - The CWA contains a citizen-suit provision. 33 U.S.C.
§ 1365(a). The RHA does not contain a citizen-suit provision and
is enforced through the judicial review provisions of the APA.
See Huron Mountain Club v. U.S. Army Corps of Eng'rs, 545 F. App'x
300, 390 & n.2 (6th Cir. 2013).
C. Factual and Procedural Background
We recently decided two appeals involving challenges to
the Vineyard Wind project brought by different plaintiffs. See
Melone v. Coit, 110 F.4th 21 (1st Cir. 2024); Nantucket Residents,
100 F.4th at 1. We draw from our opinions in those cases to set
forth the factual and procedural background of the Vineyard Wind
project. We then provide additional relevant facts as necessary.
In 2009, the BOEM began evaluating the possibility of
wind energy development on the Outer Continental Shelf off the
coast of Massachusetts, pursuant to its authority under the OCSLA.
Melone, 100 F.4th at 26. After several years of review, in 2014,
the BOEM made "a small portion of the Massachusetts Wind Energy
Area -- a section of the Outer Continental Shelf -- available for
lease." Nantucket Residents, 100 F.4th at 10 (citing 79 Fed. Reg.
34771 (June 18, 2014)). In 2015, the BOEM leased a 166,886-acre
(or 675-square-kilometer) portion of the area to Vineyard Wind.
Melone, 100 F.4th at 26.
In December 2017, Vineyard Wind submitted to the BOEM a
COP that proposed building an offshore wind project in an - 15 - approximately 76,000-acre zone of the lease area. Id. The COP
contemplated the construction of turbines and additional wind
energy infrastructure capable of generating approximately 800
megawatts of clean wind energy, enough to power approximately
400,000 homes. Melone, 100 F.4th at 26; Nantucket Residents, 100
F.3d at 10. In response to Vineyard Wind's submission, several
federal agencies initiated an environmental review process.
In March 2018, the BOEM published a notice of intent to
prepare an EIS responsive to the Vineyard Wind proposal. 83 Fed.
Reg. 13777 (Mar. 30, 2018). Following this notice, the BOEM held
five public "scoping" meetings in the vicinity of the proposed
project to identify issues and potential alternatives to the COP
for consideration in the EIS. In November 2018, Vineyard Wind
applied for permits under CWA Section 404 and the RHA to construct
an offshore cable transmission system that would connect the
turbines to a landfall site at Covell’s Beach in Hyannis,
Massachusetts. In December 2018, the BOEM issued a draft EIS, 83
Fed. Reg. 63184-02 (Dec. 7, 2018), which it supplemented in June
2020.
Meanwhile, on December 6, 2018, the BOEM requested
consultation with the NMFS out of concern about the impact the COP
might have on the endangered right whale. Consultation commenced
in May 2019. On September 11, 2020, the NMFS issued a biological
opinion concluding that the Vineyard Wind project would likely not - 16 - jeopardize the continued existence of the right whale. The opinion
also contained reasonable and prudent mitigation measures deemed
necessary to reduce the project's potential effects on the right
whale. See generally Nantucket Residents, 100 F.4th at 10. On
May 21, 2021, the NMFS issued to Vineyard Wind an IHA allowing the
non-lethal, "incidental Level B harassment of no more than twenty"
right whales. Melone, 100 F.4th at 26.
On May 7, 2021, the BOEM requested that the NMFS
reinitiate consultation in response to two developments. First,
the BOEM had concluded that the September 11, 2020, biological
opinion did not fully assess the potential impacts on the right
whale of fish monitoring surveys to be conducted by Vineyard Wind
if its COP were approved. Second, more up-to-date information
regarding the right whale population had become available since
completion of the September 11, 2020, biological opinion. In
requesting reinitiation of consultation, the BOEM documented its
understanding that the September 11, 2020, biological opinion
"will remain valid and effective until consultation is completed."
The BOEM also represented that, if the COP were to be approved,
"it would not allow the commencement of the aforementioned [fish
- 17 - monitoring] surveys until [the reinitiated consultation] is
concluded."3
The NMFS agreed to reinitiate consultation and, on
October 18, 2021, issued an updated biological opinion. The
updated opinion again concluded that the project would likely not
jeopardize the right whale's continued existence. Both the 2020
and 2021 biological opinions also included incidental take
statements which concluded that, after mitigation measures were
implemented, the maximum anticipated take from project
3 In a contemporaneously issued file memorandum, the BOEM explained that, while it had requested reinitiation of consultation on the fishery monitoring plan, approval of the project would "neither jeopardize the continued existence of ESA-listed species nor destroy or adversely modify designated critical habitat." Supp. App. at 1683, Seafreeze Appeal. The memorandum emphasized that reinitiation of consultation to consider fishery monitoring plans as part of the proposed action would "not provide any new information concerning potential effects on threatened and endangered species from construction, operation, and decommissioning of the project and, therefore, [would] not change the determinations of the [September 11, 2020, biological opinion] for the rest of the project already considered in the Opinion." Id. at 1684; see also id. at 1683 ("The authorization of Vineyard Wind I and the fishery monitoring plan are not interdependent. Although approval of the fishery monitoring plan . . . would not occur but for the project, the authorization of [the project] is not dependent upon approval of the fishery monitoring plan."). The memorandum also stated that, if the BOEM were to approve the COP, "commencement of any monitoring activities would be conditioned on the conclusion of this reinitiation and compliance with any NMFS survey mitigation measures that may be identified and included in the revised Incidental Take Statement and implementing Terms and Conditions in the revised Opinion." Id. at 1684. - 18 - construction was Level B harassment of twenty right whales caused
by construction noise.
Between the issuance of the September 11, 2020, and
October 18, 2021, biological opinions, several other relevant
events took place. On December 1, 2020, Vineyard Wind notified
the BOEM that it was withdrawing its proposed COP from review in
order to conduct a technical and logistical analysis of the wind
turbine generator it had decided to use in the final project
design. See 86 Fed. Reg. 12494 (Mar. 3, 2021). This analysis
sought to "review updated project parameters to confirm that [they]
fell within the project design envelope" that the BOEM had used in
conducting its earlier review. Id. The notice stated that
Vineyard Wind intended to rescind its withdrawal of the COP upon
completion of its analysis. Less than two months later, on January
22, 2021, Vineyard Wind notified the BOEM that it had completed
its analysis and concluded that it did not need to modify the COP.
Vineyard Wind also requested that the BOEM resume its review of
the COP, and the BOEM did so, see 86 Fed. Reg. at 12494-95.
The BOEM issued a final EIS ("FEIS") on March 12, 2021.
86 Fed. Reg. 14153 (Mar. 12, 2021). The FEIS considered five
action alternatives (one of which had two sub-alternatives) to the
project proposed by Vineyard Wind in the COP. It also considered
a no-action alternative. The FEIS identified the COP, with
modifications drawn from several of the alternatives that the BOEM - 19 - had considered, as the preferred alternative. The FEIS also
included a lengthy assessment of potential impacts from the project
on the natural and human environment. It acknowledged that the
project would likely have a negative economic impact on commercial
fishing. But it suggested that potential revenue losses could be
offset by compensatory funds that Vineyard Wind had agreed to set
aside. It also proposed mitigation measures that would reduce
negative impacts.
On May 10, 2021, the BOEM, the Corps, and the NMFS issued
a joint record of decision ("ROD"). The ROD memorialized the
BOEM's selection of the preferred alternative in the FEIS, the
Corps' decision to issue the necessary CWA/RHA permits, and the
NMFS's decision to issue the IHA. The ROD stated that the
preferred alternative would allow eighty-four or fewer wind
turbines to be installed in 100 of the 106 locations proposed in
the COP. It also required that the turbines be placed in an
east-west orientation with each turbine separated by one nautical
mile.
The BOEM's approval of the COP was subject to several
non-discretionary mitigation, monitoring, and reporting measures.
The BOEM attached to the ROD a memorandum explaining why the
preferred alternative satisfied the requirements of the OCSLA and
other applicable regulatory authority. On July 15, 2021, the BOEM
issued its final approval of the COP. The approval was subject to - 20 - more than 100 pages of terms and conditions, including compliance
with any substantive amendments to the September 11, 2020,
biological opinion that might arise from the ongoing reinitiated
consultation. On January 20, 2022, after receiving the October
18, 2021, biological opinion from the NMFS, the BOEM confirmed its
final approval of the COP subject to the terms and conditions, and
prescribed reasonable and prudent measures, set forth in the
updated opinion.
The Seafreeze plaintiffs and the Alliance filed the
lawsuits underlying these appeals on December 15, 2021, and January
31, 2022, respectively. As explained, the Seafreeze plaintiffs
sued under the APA, the ESA, the NEPA, and the OCSLA. The Alliance
sued under the APA, the NEPA, the MMPA, the ESA, the OCSLA, and
the CWA/RHA. In both cases, the parties cross-moved for summary
judgment, and the district court, in a thoughtful order, granted
the defendants’ motions and denied the plaintiffs’ motions.
The district court concluded, inter alia, that (1) the
plaintiffs’ ESA claims were non-justiciable under Article III of
the Constitution, (2) the plaintiffs were outside of the zone of
interests protected by the NEPA, (3) the Alliance was outside of
the zone of interests protected by the MMPA, (4) the Alliance had
failed to identify a genuine issue of material fact as to whether
the Corps' issuance of the CWA Section 404 permit was arbitrary,
capricious, an abuse of discretion, unsupported by substantial - 21 - evidence, or otherwise not in accordance with law, and (5) the
plaintiffs had failed to identify a genuine issue of material fact
as to whether the BOEM’s approval of the project under the OCSLA
was arbitrary, capricious, an abuse of discretion, unsupported by
substantial evidence, or otherwise not in accordance with law.
These appeals followed.
II.
We review the district court's summary judgment rulings
de novo. See, e.g., Melone, 100 F.4th at 29; Nantucket Residents,
100 F.4th at 12. These include the court's Article III standing
and zones-of-interests rulings, the challenges to which raise
legal questions. In re Evenflo Co., Inc. Mktg., Sales Pracs. &
Prods. Liab. Litig., 54 F.4th 28, 34 (1st Cir. 2022) (reviewing de
novo the district court's ruling on Article III standing); T.S. ex
rel. T.M.S. v. Heart of CarDon, LLC, 43 F.4th 737, 741 (7th Cir.
2022) (reviewing de novo the district court's zone-of-interests
ruling).
We also review de novo the district court's summary
judgment determinations that the defendants did not act in a manner
that was "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," or that was "unsupported by
substantial evidence." Melone, 100 F.4th at 29 (quoting 5 U.S.C.
§ 706(2)(A), (E)); see also Nantucket Residents, 100 F.4th at 12.
An agency action or inaction is arbitrary or capricious if the - 22 - agency relied on factors Congress did not intend it to consider,
failed to consider an important aspect of the problem, explained
the decision in terms that run counter to the evidence, or reached
a decision so implausible that it cannot be ascribed to a
difference in view or the product of agency expertise. See Melone,
100 F.4th at 29; see also Motor Vehicle Mfrs. Ass'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Finally, we may affirm the district court's judgments on
any independent ground supported by the record. E.g., Puerto Rico
Fast Ferries LLC v. SeaTran Marine, LLC, 102 F.4th 538, 549 (1st
Cir. 2024).
III.
A. The APA/ESA Claims
We first consider the challenges to the district court's
grant of summary judgment to the defendants on the plaintiffs'
APA/ESA claims. As previously noted, the court dismissed these
claims as non-justiciable under Article III. Whether a claim
satisfies the demands of Article III implicates our subject matter
jurisdiction, e.g., United States v. Texas, 599 U.S. 670, 686
(2023), and so we must satisfy ourselves that we have subject-
matter jurisdiction before addressing the merits of a claim, see
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-
102 (1998) (prohibiting the exercise of "hypothetical
jurisdiction"). We therefore begin by reviewing whether the court - 23 - properly concluded that the plaintiffs’ ESA claims were
non-justiciable based on the summary judgment record.
The plaintiffs presented the district court with three
developed theories of how the defendants violated the ESA. The
first two, advanced by the Seafreeze plaintiffs, targeted aspects
of the September 11, 2020, biological opinion, but not the
superseding October 18, 2021, biological opinion. The third,
advanced by the Alliance, argued that the sequence in which the
defendants acted resulted in the issuance of the ROD and approval
of the COP without there being in place a valid biological opinion.
The district court rejected all three arguments for a
lack of standing and, alternatively, mootness. As to standing,
the court first assessed the nature of the injuries that the
plaintiffs were entitled to assert. See, e.g., FDA v. All. for
Hippocratic Med., 602 U.S. 367, 380 (2024) (observing that, to
establish standing, "a plaintiff must demonstrate (i) that she has
suffered or likely will suffer an injury in fact, (ii) that the
injury likely was caused or will be caused by the defendant, and
(iii) that the injury likely would be redressed by the requested
judicial relief"). The court concluded that, while each plaintiff
had adduced sufficient evidence of economic injury due to the
project's potential adverse effects on commercial fishing, no
plaintiff had adduced admissible evidence of non-economic injury.
In reaching this latter conclusion, the court rejected the - 24 - plaintiffs' arguments that they were appropriate parties to assert
environmental and aesthetic interests that would be harmed by the
project.
The district court then turned to whether the plaintiffs'
evidence of economic injury, causation, and redressability was
sufficient to establish that they had Article III standing to press
their ESA claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992) (emphasizing that, at the summary judgment stage, a
party claiming standing cannot rest on general allegations of
injury resulting from the defendant's conduct but rather must
adduce evidence to support the specific facts necessary to
substantiate its standing theory); see also Bennett v. Spear, 520
U.S. 154, 167-68 (1997). The court concluded that the plaintiffs'
evidence was insufficient to meet this burden as a matter of law.
With respect to the Seafreeze plaintiffs, who, again,
only sought to challenge aspects of the superseded September 11,
2020, biological opinion, the district court determined that they
had failed to adduce evidence that their economic injuries were
likely caused by the project's alleged negative impact on any
endangered species. With respect to the Alliance, the court
determined that it had failed to adduce evidence that the
procedural actions of which it complained regarding the two
biological opinions either likely caused its alleged injury or
likely caused any erroneous government decision. See Ctr. for - 25 - Biological Diversity v. EPA, 861 F.3d 174, 184 (D.C. Cir. 2017)
(observing that a plaintiff alleging procedural injury must show
both a connection between the error and a substantive agency
outcome and a connection between that outcome and the plaintiff's
particularized injury). In support of the latter ruling, the court
observed that the October 18, 2021, biological opinion, which the
Alliance did not challenge, served to break the chain of causation
underlying the Alliance's standing theory.
Alternatively, the district court concluded that all of
plaintiffs' claims were moot. As to the Seafreeze plaintiffs,
their ESA claims were moot because they had targeted the September
11, 2020, biological opinion, and not the superseding October 18,
2021, biological opinion, which was the ultimate basis for the
BOEM approving the COP. As to the Alliance, its ESA claim was
moot because the alleged procedural error was rendered immaterial
by the subsequent issuance of the superseding biological opinion,
which the Alliance did not challenge, and which, again, was the
ultimate basis for approving the COP.
On appeal, the Seafreeze plaintiffs present only one
developed argument challenging the district court's standing and
mootness rulings on their ESA claims.4 They assert that the court
4The section of the Seafreeze plaintiffs' brief challenging the district court's ESA rulings contains three subparts. The first presents the developed argument we are about to address.
- 26 - erred in refusing to recognize the LICFA's associational standing
to assert, on behalf of LICFA member David Aripotch, certain
non-economic environmental and aesthetic injuries arising from
Vineyard Wind's impact on the project area. Aripotch, who is not
a party, owns plaintiff Old Squaw and captains its boat. In the
district court, he submitted a declaration detailing the aesthetic
The second, titled "The Commercial Fishermen's ESA Claims Were Not Mooted And The [September 11, 2020, Biological Opinion] Violated ESA In Multiple Ways," contains five brief arguments. Two reiterate the Seafreeze plaintiffs' merits challenges to the September 11, 2020, biological opinion and add nothing to the justiciability analysis. The other three involve variations on a single theme: that challenges to the September 11, 2020, biological opinion are not moot because that was the opinion in effect when the agency defendants issued the ROD and approved the COP. We shall have more to say about this argument in our discussion of the Alliance's challenge to the court's dismissal of its ESA claim. The third, titled "The District Court Erred In Holding That The Commercial Fishermen Waived Certain ESA Arguments," asserts that the district court erred in regarding as waived for lack of summary judgment briefing nine additional ESA claims the Seafreeze plaintiffs had asserted in their complaint. But the record citations the Seafreeze plaintiffs provide in support of this argument only point to a few passing mentions of these claims and attempts to incorporate by reference arguments made elsewhere, often by parties to other Vineyard Wind lawsuits. The record therefore confirms that the merits of these claims were not developed and argued in the summary judgment papers. See Rocafort v. IBM, Corp., 334 F.3d 115, 121-22 (1st Cir. 2003) (arguments raised in the complaint but not developed in summary judgment papers are waived); Exec. Leasing Corp. v. Banco Popular de P.R., 48 F.3d 66, 67-68 (1st Cir. 1995) (parties must include within the four corners of their briefs any arguments they wish the court to consider and cannot circumvent page limits through incorporation by reference of arguments made elsewhere). The district court appropriately declined to address the merits of these claims. - 27 - and spiritual pleasures he derives from fishing and photographing
right whales and other marine life in the project area.
The district court rejected the argument for two reasons.
First, it concluded that Aripotch's personal injuries and
interests could not be imputed to Old Squaw, the corporation he
owns. Second, the court refused to allow the LICFA to assert
Aripotch's non-economic interests in the project area because the
LICFA did not demonstrate that those interests are germane to its
purpose of supporting fisheries management. See Friends of the
Earth, Inc. v. Laidlaw Env'tl Servs. (TOC), Inc., 528 U.S. 167,
181 (2000) (observing that an association may have standing to sue
on behalf of its members when, inter alia, the member interest it
is asserting is "germane to the organization's purpose").
The Seafreeze plaintiffs challenge the ruling that the
LICFA failed to demonstrate that protection of Aripotch's
aesthetic and spiritual interests in the project area is germane
to its purpose. They call our attention to the LICFA's articles
of incorporation. Those articles indicate that the preservation,
maintenance, and welfare of the environment in the saltwater
fisheries "in Suffolk County [New York] and its environs," now and
for future generations, are among the purposes for which the LICFA
was formed in October 2001. The Seafreeze plaintiffs sought to
introduce the articles into the summary judgment record by means
of a motion for judicial notice filed after the summary judgment - 28 - briefing deadline had passed. The court denied the motion as an
untimely effort to supplement the summary judgment record.
The Seafreeze plaintiffs first say that this was
reversible error because "no timeliness requirement exists for
matters of judicial notice pertaining to standing, as
jurisdictional rules like standing may be raised at any time."
This argument is incorrect. Trial courts possess considerable
case-management authority, which includes the authority to set
deadlines for filing pretrial motions. Rosario-Díaz v. Gonzáles,
140 F.3d 312, 315 (1st Cir. 1998) (citing Fed. R. Civ. P.
16(b)(2)); see also Fed. R. Civ. P. 16(b)(3) (mandating that when
federal trial courts issue scheduling orders, those orders limit
the time for, inter alia, filing motions); L.R., D. Mass. 7.1(a)(1)
(authorizing the establishment of briefing deadlines). If
information calling into question the court's subject-matter
jurisdiction becomes available after such a deadline has passed,
the expiration of the deadline does not preclude an inquiry into
the court's power to hear the underlying claim. See Fed. R. Civ.
P. 12(h)(3) (stating that a court must dismiss an action if "at
any time" it determines "that it lacks subject-matter
jurisdiction" (emphasis supplied)). But this principle has no
bearing on the court's authority to place reasonable time limits
on the ability of a party asserting federal subject-matter
jurisdiction to produce proof that Article III standing exists. - 29 - See Town of Milton v. FAA, 87 F.4th 91, 95 (1st Cir. 2023) (party
asserting federal jurisdiction bears the burden of establishing
Article III standing).
The Seafreeze plaintiffs also invoke Fed. R. Evid.
201(c)(2), which states that a court "must take judicial notice if
a party requests it and the court is supplied with the necessary
information," and Fed. R. Evid. 201(d), which states that a court
"may take judicial notice at any stage of the proceeding."
According to the Seafreeze plaintiffs, these Rules obliged the
court to take judicial notice of the LICFA's articles of
incorporation, even though the deadline for summary judgment
briefing had passed. But even if the articles of incorporation
are a proper subject of judicial notice because the LICFA had filed
them with the New York Secretary of State, they would not provide
grounds for the LICFA to represent Aripotch's personal interests
in the project area.
The articles of incorporation establish only that a
stated purpose for incorporating the LICFA in October 2001 was to
protect the welfare of the environment in the saltwater fisheries
in Suffolk County and its environs. They do not establish, as a
matter of law, that this has been one of the LICFA's actual
purposes in the years since its founding. It would deprive the
defendants of their procedural right to contest the issue if we
were to draw the broader inference from a document introduced into - 30 - the record after the summary judgment briefing had closed.
Moreover, a commercial fishing association's interest in
protecting the welfare of the area in which its members carry on
their business does not, ipso facto, encompass an individual
member's observational interests in the right whale or
recreational interests in fishing and photography. And finally,
the area to which the LICFA's environmental interests allegedly
extend do not appear to include the project area, which is more
than sixty-five miles away from Suffolk County.
We turn now to the Alliance's challenge to the district
court's rejection of its ESA claim on justiciability grounds. The
Alliance does not explicitly engage the particulars of the court's
standing and mootness rulings. The section of the Alliance's
opening brief addressing the rejection of its ESA claim contains
two subparts. The first reiterates the merits of its ESA claim.
That claim, as we understand it, is that issuance of an ROD based
on a biological opinion that is subject to reinitiated consultation
is a per se violation of the ESA, regardless of (1) what the
agencies say about the ongoing validity and effectiveness of the
earlier opinion, (2) the limited and discrete nature of the
reinitiated consultation, and (3) steps the agencies take to ensure
that the terms and conditions and reasonable and prudent measures
contained within the updated opinion will be both enforceable and
enforced. The second subpart argues that the Alliance has properly - 31 - alleged and demonstrated both economic and environmental injuries
and a basis for representing the interests of its members.
The Alliance's lack of direct engagement with the
substance of the court's justiciability rulings in its opening
brief is itself grounds for rejecting its challenge to the entry
of summary judgment on its ESA claim. E.g., Cioffi v. Gilbert
Enters., Inc., 769 F.3d 90, 93-94 (1st Cir. 2014) (observing that
an appealing party must explain "why a particular order is
erroneous"); Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d
25, 29 (1st Cir. 2015) ("[W]e do not consider arguments for
reversing a decision of a district court when the argument is not
raised in a party's opening brief."). But, in any event, there is
no basis for disturbing the court's justiciability rulings on their
merits.
We assume solely for the sake of argument, but with
skepticism, that the ESA prohibits the issuance of an ROD and
approval of a COP while reinitiated consultation over a biological
opinion is ongoing, regardless of circumstances. Compare
Defenders of Wildlife v. BOEM, 684 F.3d 1242, 1252 (11th Cir. 2012)
(rejecting argument that the "BOEM's choice to reinitiate
consultation . . . automatically renders . . . former biological
opinions invalid," particularly where the prior opinions were
"reconfirmed" and "have not been withdrawn despite reinitiation of
consultations"), with Env'tl Prot. Info. Ctr. v. Simpson Timber - 32 - Co., 255 F.3d 1073, 1076 (9th Cir. 2001) (stating in dicta and
without elaboration that "[r]einitiation of consultation
requires . . . the NMFS to issue a new Biological Opinion before
the agency action may continue") (citation and internal quotation
marks omitted)). Even so, this assumption does not undermine the
court's justiciability rulings.
As explained above, the district court concluded, based
on the summary judgment record, that the Alliance lacked standing
to press its ESA claim because an event occurring after the alleged
procedural error (the initial issuance of the ROD and approval of
the COP without a valid biological opinion) broke the causal chain
between that error and both the agencies' substantive action
(approval of the COP) and the Alliance's alleged Article III injury
(economic harm from the operation of the project). For the same
reasons, the court concluded that the Alliance's ESA claim was
moot because an event occurring after the alleged procedural error
had rendered it immaterial.
The event on which both conclusions rest was the NMFS's
issuance of the superseding October 18, 2021, biological opinion,
whose merits the Alliance does not challenge. Once that
superseding biological opinion issued, the district court
reasoned, the Alliance could no longer claim that the alleged
procedural error remained a legal cause of either the relevant
substantive agency actions (the final COP approval) or the - 33 - Alliance's injury (economic harm caused by the COP approval).
Seafreeze Shoreside, Inc., et al. v. U.S. Dep't of the Interior,
et al., Nos. 1:22-cv-11091-IT, 1:22-cv-11172-IT, 2023 WL 6691015,
at *28-29 (D. Mass. Oct. 12, 2023). Nor could the court provide
a remedy that might affect the matter at issue because the Alliance
alleged only an error that was no longer relevant to the agency
action under review. See id. at *27 n.19 (citing Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)
(describing the essential characteristic of a moot case) and Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096,
1114 (10th Cir. 2010) (holding moot an ESA claim that did not
challenge a superseding biological opinion)).
In its reply brief, the Alliance addresses the district
court's analysis by stating that the issuance of the superseding
October 18, 2021, biological opinion, and the January 20, 2022,
confirmation of the prior COP approval, "cannot cure" the BOEM's
earlier procedural error of issuing the ROD and approving the COP
while the 2020 biological opinion was under reinitiated
consultation. "Because the iron-clad rule of ESA is to look before
you leap," the Alliance says, "the later-issued [October 18, 2021,
biological opinion] is irrelevant to the BOEM's procedural duty to
comply with the ESA in rendering its decision [to issue the ROD]
on May 10, 2021."
- 34 - This argument misses the point. The significance of the
NMFS's issuance of the unchallenged superseding October 18, 2021,
biological opinion (and, we might add, the BOEM's January 20, 2022,
confirmation of its prior approval of the COP given the conclusions
in that unchallenged superseding opinion) does not lie in whether
they "cured" any earlier-occurring procedural error. Rather,
these later agency actions, taken as part of an ongoing and legally
authorized consultation process, precluded any basis for finding
that taint to the COP approval arising from its allegedly having
been issued without a valid biological opinion was having any
ongoing effect. And, if there was no basis in the summary judgment
record for finding that the procedural violation complained of was
having an ongoing effect, there was no basis in the record for
either enjoining or unwinding the project, which is the specific
relief the Alliance sought, or for concluding that the Alliance's
injury was redressable in any way.
The district court thus did not err in awarding summary
judgment to the defendants on the plaintiffs' APA/ESA claims.
B. The APA/NEPA and APA/MMPA Claims
We next consider the challenges to the district court's
grant of summary judgment to the defendants on the plaintiffs'
APA/NEPA claims and the Alliance's APA/MMPA claim. We consider
these challenges together because the court dismissed both sets of
claims for being outside the zones of interests of the - 35 - environmental statutes that the plaintiffs invoked. With respect
to the APA/NEPA claims, the court held that the plaintiffs did not
put forth competent evidence as to an environmental harm that would
impact their commercial fishing. With respect to the APA/MMPA
claim, the court held that the Alliance had not established a
cognizable interest in right whales or any other marine mammal.
An APA claimant must establish that the claim arguably
falls within the zone of interests to be protected or regulated by
the underlying statute. See Lexmark Int'l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 129-30 (2014). As the word
"arguably" suggests, the zone-of-interests test "is not
'especially demanding.'" Id. at 130 (quoting
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209, 225 (2012)). Congress enacted the APA "to make
agency action presumptively reviewable," and we do not require
"any indication of congressional purpose to benefit the would-be
plaintiff." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians,
567 U.S. at 225 (internal quotation marks omitted) (quoting Clarke
v. Secs. Indus. Ass'n, 479 U.S. 388, 399 (1987)). Thus, the
zone-of-interests test "forecloses suit only when a plaintiff's
interests are so marginally related to or inconsistent with the
purposes implicit in the statute that it cannot reasonably be
assumed that Congress authorized that plaintiff to sue." Lexmark,
572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of - 36 - Pottawatomi Indians, 567 U.S. at 225 (internal quotation marks
omitted)).
The zone-of-interests test was once treated as a
justiciability doctrine implicating the court's subject-matter
jurisdiction. See id. at 128 n.4 (citations omitted). But in
Lexmark, the Supreme Court clarified that the test is not
jurisdictional but rather goes to whether the claimant has stated
a viable claim. See id. (citations omitted). Therefore, we may
affirm a zone-of-interests-based dismissal on other grounds
supported by the record. See Puerto Rico Fast Ferries, 102 F.4th
at 549. But cf. Steel Co., 523 U.S. at 93-102 (prohibiting
affirmance of the dismissal of a claim based on lack of subject-
matter jurisdiction by rejecting the claim on its merits).5
Here, we agree with the district court's
zone-of-interests ruling as to the Alliance's APA/MMPA claim. The
5 The plaintiffs' APA/NEPA challenges come to us in an odd procedural posture. The Seafreeze plaintiffs challenge both the district court's zone-of-interests ruling and the lawfulness under the NEPA of the BOEM's actions. The Alliance, however, challenges only the court's zone-of-interests ruling. It does not address the merits of its APA/NEPA challenge in either its opening brief or its reply brief, even though the government calls the lapse to its attention, and even though the success of its zone-of-interests argument would lead naturally to our consideration of the merits given the fully developed administrative record and opportunity the Alliance had to develop its APA/NEPA claims in the summary judgment briefing. Thus, to the extent that the Alliance intends to press any APA/NEPA claims that differ from those of the Seafreeze plaintiffs, they are waived. - 37 - Alliance argues that it may assert the aesthetic and recreational
interests in marine mammals (including the right whale) of
"Alliance member" David Aripotch. But this argument is based on
a misstatement. Aripotch's company, Old Squaw, is a member of the
Alliance, but Aripotch is not.6 Moreover, and in any event, the
protection of marine mammals such as the right whale is not germane
to the Alliance's purpose, which is to represent the interests of
commercial fisheries and related organizations. See Friends of
the Earth, 528 U.S. at 181. The court properly awarded the
defendants summary judgment on the Alliance's APA/MMPA claim.
But we disagree with the district court's
zone-of-interests ruling as to the plaintiffs' APA/NEPA claims.
While the court was correct to reject as incompetent much of the
plaintiffs' evidence of environmental injury, the ROD itself
acknowledges that the discharge of fill material associated with
the project will have major adverse impacts on mollusks, fish, and
crustaceans in the project area. Moreover, the plaintiffs have
plausibly linked these adverse impacts to the expected adverse
economic effects of the project on their commercial fishing
6 In their responsive briefs, the defendants called our attention to the fact that Aripotch is neither a member of the Alliance nor a party to either of these consolidated appeals. The Alliance did not correct the misstatement in its opening brief or reply; rather, it simply changed its characterization of Aripotch from being an "Alliance member" to being a "representative" of an Alliance member. - 38 - interests. This is enough to satisfy the zone-of-interests test.
See Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 155-56
(2010) (recognizing that plaintiffs whose alleged injuries from
agency deregulation had both environmental and economic components
fell within the APA and the NEPA's zone of interest).
Despite this, we affirm the dismissal of these claims.
On appeal, the Seafreeze plaintiffs develop three arguments that
the BOEM violated the NEPA's procedural requirements. They
explicitly premise all three arguments on an underlying assertion
that the BOEM was improperly motivated to reach decisions so that
Vineyard Wind could timely honor its prior contractual commitments
surrounding the project. The first argument is that this improper
motivation led the BOEM to limit its consideration of reasonable
alternatives to the project. The second is that it led the BOEM
to inappropriately revive the EIS process after Vineyard Wind's
December 1, 2020, provisional withdrawal of its proposed COP from
review to test the wind turbine generator it had decided to use.
The third is that it led the BOEM to fail to appropriately consider
the incremental impact of the project in combination with the
likely impact of other future, reasonably foreseeable offshore
wind development projects.
As an initial matter, the premise of the Seafreeze
plaintiffs' arguments is misguided. By regulation, the BOEM was
under an obligation to "briefly summariz[e] [in the FEIS] the - 39 - purpose and need to which the agency is responding," 40 C.F.R.
§ 1502.13; to "[r]igorously explore and objectively evaluate all
reasonable alternatives," id. § 1502.14(a); and, most importantly
for present purposes, to consider "the needs and goals of the
parties involved in the application or permit as well as the public
interest," 43 C.F.R. § 46.420(a)(2).7 Thus, where the agency is
not itself the project's sponsor, it may give substantial weight
to an applicant's preferences, at least insofar as it considers
alternatives. See Beyond Nuclear, 704 F.3d at 19. This principle
derives from the fact that, under the NEPA, agencies must consider
only "reasonable" alternatives, meaning alternatives "bounded by
some notion of [technical and economic] feasibility," id. (quoting
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519, 551 (1978)), and only alternatives that would "'bring
about the ends of the proposed action,'" id. (quoting Citizens
7 The FEIS identified the BOEM's purpose and need as "whether to approve, approve with modifications, or disapprove the COP to construct, operate, and decommission an approximately 800 MW, commercial-scale wind energy facility within the area of [Vineyard Wind's] lease to meet New England's demand for renewable energy." Supp. App. at 972, Seafreeze Appeal. It also noted, inter alia, that the "BOEM's decision on Vineyard Wind's COP is needed to execute [the BOEM's] duty to approve, approve with modifications, or disapprove, the proposed Project in furtherance of the United States' policy to make [Outer Continental Shelf] energy resources available to expeditious and orderly development." Id. The plaintiffs do not challenge the lawfulness of this purpose and need statement. - 40 - Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir.
(1991)).
Apart from the erroneous premise, the Seafreeze
plaintiffs' APA/NEPA arguments fail to establish that the BOEM
engaged in arbitrary or capricious decisionmaking. The Seafreeze
plaintiffs challenge the BOEM's failure to consider alternatives
that would have required construction outside the lease area. But
the BOEM supportably concluded that these were effectively new
proposed actions that were not responsive to the agency's
regulatory obligation to address the Vineyard Wind proposal, which
was of course limited to the Vineyard Wind lease area. The BOEM
also supportably explained that it would consider proposals on
other lease areas through separate regulatory processes.
The Seafreeze plaintiffs also challenge the BOEM's
termination of the EIS process in response to Vineyard Wind's
request to provisionally withdraw the proposed COP from review,
and the agency's subsequent decision to permit Vineyard Wind to
rescind its withdrawal without providing an additional notice and
comment period. Vineyard Wind asserts that the Seafreeze
plaintiffs lack Article III standing to make this claim.
We agree, for reasons that track those explaining our
ruling that the plaintiffs lack standing to complain about the
allegedly improper issuance of the ROD and approval of the COP
while reinitiation of ESA consultation was underway. See supra - 41 - Part III-A. Here too, even if we assume (again, with skepticism)
that a second notice-and-comment period was required, the summary
judgment record does not permit a conclusion that any taint from
the alleged procedural error had a causal effect on the BOEM's
ultimate approval of the COP. See Lujan, 504 U.S. at 561. The
Seafreeze plaintiffs point to no comment that they, or anyone else,
were precluded from submitting to the BOEM, and they suggest no
other practical effect that flowed from the absence of a second
notice-and-comment period. Any possibility of such an effect is,
moreover, implausible, given that the COP was unchanged and already
had been subject to extensive notice and comment. Thus, the
alleged procedural error was not a likely cause of the Seafreeze
plaintiffs' injury. See Ctr. for Bio. Div., 861 F.3d at 184. Nor,
therefore, could it justify enjoining or unwinding the project.8
Finally, the Seafreeze plaintiffs argue that the BOEM
failed to appropriately consider the incremental impact of the
8 In addition to complaining about the lack of an additional notice-and-comment period, the Seafreeze plaintiffs say that resuming review of the Vineyard Wind COP was ultra vires because nothing in the NEPA or the OCSLA "provides the BOEM with authority to resume review of a terminated COP." But again, even if we assume that to be so, the Seafreeze plaintiffs have provided no basis in evidence or argument for concluding that this alleged procedural error likely tainted the injury-causing event: ultimate approval of the COP. There is no likelihood of a different outcome had the BOEM been required to formalistically reconduct its review process from the start rather than picking up where it left off. Moreover, without a basis for finding a likely causal effect, there would be no proper basis for enjoining or unwinding the project. - 42 - project in combination with the likely impact of other future,
reasonably foreseeable offshore wind development projects. They
support this argument only with two conclusory allegations: (1)
"the Federal Defendants gutted the core of the cumulative impacts
analysis set forth in the Supplemental Draft EIS by removing much
of it from the [FEIS], thereby violating NEPA's regulations"; and
(2) "the Federal Defendants improperly segmented their NEPA
analysis" by "undercounting reasonably foreseeable offshore wind
development outside the lease area." The Seafreeze plaintiffs do
not elaborate upon either of these allegations.9 They therefore
have not put the correctness of the district court's ruling into
issue. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.") (citations omitted); see also id. ("It is not
9 In their reply brief, in response to the defendants' arguments that the Seafreeze plaintiffs' briefing of the cumulative-impacts issue was inadequate, the Seafreeze plaintiffs point to a portion of the executive summary of the supplement to the EIS that, they say, did not make its way into the FEIS. They also seek to clarify that their position with respect to the BOEM's alleged improper segmenting of its cumulative effects analysis is that the BOEM improperly failed to treat certain aspirational goals that the Biden administration set for offshore wind development as "reasonably foreseeable future actions," within the meaning of 43 C.F.R. § 46.30, to be accounted for in the cumulative-impacts analysis. Arguments raised for the first time in a reply brief are ordinarily deemed waived, see Lahens v. AT&T Mobility P.R., Inc., 28 F.4th 325, 328 n.1 (1st Cir. 2022), and we see no reason to depart from that principle here. - 43 - enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel's work . . . .").
The district court did not err in awarding summary
judgment to the defendants on the plaintiffs' APA/NEPA and APA/MMPA
claims.
C. The APA/CWA Claims
We next consider the challenge to the district court's
grant of summary judgment to the defendants on the Alliance's
APA/CWA claims. Although the Alliance makes three arguments on
appeal, only one was properly preserved: that the Corps' decision
to issue a CWA Section 404 permit for the discharge of dredged or
fill material arbitrarily and capriciously failed to properly
account for the effect of the project on commercial fisheries,
wildlife, and the marine environment.10 The court did not
explicitly address this argument in its summary judgment order.
10 The Alliance also claims that certain misstatements regarding the scope of the project contained in the Corps' section of the ROD, later corrected as clerical errors in an August 4, 2021, ROD Supplement, reveal that the Corps did not understand the scope of the project it was permitting. This claim is not preserved. The district court held it waived because it was not pleaded in the Alliance's complaint, and the Alliance does not engage this ruling in its opening brief. See Lahens, 28 F.4th at 328 n.1. The Alliance also claims that, in issuing the permit, the Corps violated the CWA by failing to consider the cumulative impacts of Vineyard Wind and other surrounding offshore wind projects. But the Alliance did not raise this concern with the Corps during its public comment process. It therefore cannot now seek to establish that the Corps acted arbitrarily or capriciously on this basis. See Dep't of Transp. v. Pub. Citizen, 541 U.S.
- 44 - The Alliance argues that the Corps issued the permit
under the mistaken belief that the impacts of the project on
commercial fisheries, wildlife, and the marine environment would
be minor. In support of this argument, the Alliance points to
several statements in the FEIS which, if read in isolation, appear
to project more-than-minor impacts from the project on commercial
fisheries, commercial shipping, recreational vessel businesses,
mollusks, fish, and crustaceans. But the Alliance's brief omits
context that qualifies the statements in a manner that supports
the Corps' conclusion.
For example, the Alliance cites to a page in the FEIS
allegedly stating that the project will have "moderate to major
impacts on commercial fisheries." App. at 141, Alliance Appeal.
But in fact, that statement refers to the impacts of activities
"other than offshore wind." Id. at 141. Similarly, the Alliance
cites to alleged admissions that "offshore wind structures and
hard coverage for cables would have long-term impacts on commercial
fishing operations and support businesses such as seafood
752, 764-65 (2004); see also Vt. Yankee Nuclear Power Corp., 435 U.S. at 553-55 (emphasizing that a party must have presented a position during the administrative process to later challenge an agency decision as arbitrary and capricious for failure to have taken the position adequately into account). In so ruling, we reject the Alliance's assertion, made in its reply brief without supporting record citation, that it preserved its litigation rights on this point through comments it submitted to the BOEM during the EIS's public comment period. - 45 - processing," and that "the impacts would increase in intensity as
more offshore structures are completed." Id. at 139. But the
very same sentence concludes that "the fishing industry is
anticipated to be able to adjust fishing practices over time in
order to maintain the commercial fishing industry in the context
of offshore wind structures." Id. And while the FEIS acknowledged
that increased vehicle traffic from the construction of future
offshore wind projects could result in congestion and delays that
could decrease productivity for commercial shipping, fishing, and
recreational vessel businesses, it also concluded that the project
would have negligible to moderate impacts on navigation and vehicle
traffic after required mitigation measures were implemented.
The Alliance also cites to pages in the Corps' section
of the ROD noting anticipated adverse project impacts on the
aquatic ecosystems. But those same pages note that some of these
effects will be temporary, that required mitigation measures will
reduce impacts, and that there may also be some environmental
benefits from the project. Overall, after extensive analysis, the
FEIS concluded that the project would have a moderate impact on
fish and other aquatic organisms.
The record does not support a conclusion that the Corps
acted arbitrarily or capriciously in issuing the CWA Section 404
permit because the Corps misunderstood the findings in the
- 46 - administrative record. The district court did not err in awarding
summary judgment to the defendants on the Alliance's APA/CWA claim.
D. The APA/OCSLA Claims
Finally, we consider the challenges to the district
court's grant of summary judgment to the defendants on the
plaintiffs' APA/OCSLA claims. The plaintiffs' principal appellate
argument is that the district court misunderstood OCSLA's core
statutory provision governing the approval of offshore wind
projects, 43 U.S.C. § 1337(p)(4), in holding that the BOEM had not
acted arbitrarily or capriciously in approving the COP. Again,
that provision imposes an obligation on the BOEM to "ensure that
any activity [under the OCSLA] is carried out in a manner that
provides for" twelve criteria including, insofar as is relevant,
safety; protection of the environment; conservation of natural
resources of the Outer Continental Shelf; prevention of
interference with reasonable uses of the Outer Continental Shelf
(as determined by the Interior Secretary); and consideration of
any other use of the sea or seabed, including use for fishing and
navigation. Id. The plaintiffs also argue that the court
impermissibly discounted their evidence of safety concerns,
environmental harms, and the devastating effect on commercial
fishing that the project would cause.
The plaintiffs' principal argument is based upon
mischaracterizations of the district court's reading of OCSLA - 47 - § 1337(p)(4). The Alliance says that the court interpreted "the
twelve mandatory requirements" as "discretionary considerations
that [the BOEM] could consider and balance." The Seafreeze
plaintiffs say that the court "decided to insert the word
'reasonably' into the statutory text to allow [the BOEM] to
ostensibly 'balance' [its] mandatory duties under Section
1337(p)(4) against other considerations." The Alliance also says
that the court read the statutory phrase "shall ensure" to
"'reflect[] Congress's intent to confer flexibility . . . .'" And
it further states that "the district court erroneously held" that
Congress gave the BOEM "the discretion to ignore [the twelve OCSLA
criteria] or to balance one off another. . . ."
The district court did not (1) treat the twelve OCSLA
criteria as discretionary considerations that the BOEM "could
consider," (2) read the word "reasonably" into the OCSLA, (3) say
anything close to what the Alliance purports to quote it as saying,
or (4) hold that the BOEM has the discretion to ignore or balance
criteria. In fact, the court explicitly acknowledged that the
OCSLA criteria are "mandatory," Seafreeze Shoreside, Inc., et al.
2023 WL 6691015, at *44, and proceeded from the premise that the
BOEM must ensure that "each criterion is met" in a manner that is
"not to the detriment of the other criteria." Id.
The district court held only that the BOEM must have
"discretion" in considering whether each statutory criterion is - 48 - satisfied, and that the BOEM must "balance" the statutory mandate
to develop energy projects on the Outer Continental Shelf with the
twelve statutory criteria for which it must provide. The
plaintiffs do not contest either of these points; in fact, they
appear to concede them. See Reply Br. for Alliance at 3
("[Defendants] incorrectly argue that the Alliance takes an
absolutist position, arguing that [the BOEM] lacks any discretion
at all in how to satisfy OCSLA's requirements. But this is not
true."). In any event, the plaintiffs have not provided us with
any basis for concluding that the district court's award of summary
judgment to the defendants was infected by a misreading of OCSLA
§ 1337(p)(4).
Nor have the plaintiffs provided any other reason to
find that the BOEM acted arbitrarily or capriciously under the
OCSLA in approving the project. In focusing exclusively on the
district court's alleged errors, the plaintiffs ignore the joint
ROD and a May 10, 2021, information memorandum in which James F.
Bennett, the Program Manager for the BOEM's Office of Renewable
Energy Programs, explains the conditions that the BOEM imposed on
the project and why approval of the project, with those conditions,
satisfies the OCSLA § 1337(p)(4) criteria. Instead, the
plaintiffs simply point to portions of the record which, when read
- 49 - in isolation, appear to raise safety and environmental concerns.11
The plaintiffs' position appears to be that, if a project is likely
to have any modicum of impact on one or more of the twelve OCSLA
criteria, the BOEM cannot approve it. See, e.g., Corrected Opening
Br. for Seafreeze Pls. at 44 (challenging the district court's
conclusion that the BOEM "still retains some discretion in
considering whether the enumerated statutory criteria have been
satisfied, even when the statute does not state so explicitly")
(citations omitted). But see Reply Br. for Alliance at 3
absolutist position, arguing that [the BOEM] lacks any discretion
at all in how to satisfy the OCSLA's requirements. But this is
not true.").
11 The plaintiffs also argue that the project likely will cause commercial fisheries to abandon the project area due to difficulties with navigation, in violation of OCSLA § 1337(p)(4). The plaintiffs support the argument by pointing to a statement to this effect that the Corps initially included in its section of the ROD but later removed with a clarifying statement, issued in the form of an ROD supplement, that inclusion of the statement "was based solely upon comments of interested parties submitted to BOEM during the public comment period" and "was not based upon any separate or independent [Corps'] or other agency evaluation or study, and accordingly does not represent the position of the [Corps] . . . ." The plaintiffs contest the veracity of the Corps' representation in the ROD supplement, but the ROD, taken as a whole, bears out the Corps' statement. See Supp. App. at 2016, Seafreeze Appeal (noting that the proposed discharge of fill "will likely have minor, long-term effects on recreational and commercial fisheries"); id. at 2023 (noting that the project "will have neutral impacts to navigation during construction and operation with the incorporation of mitigation"). - 50 - This absolutist argument fails. A statute encouraging
the development of offshore wind projects but obligating the BOEM
to ensure that such projects be carried out in a manner that
provides for safety, for example, cannot be read to prohibit
project approval simply because one could imagine the project being
involved in an accident. If that is the plaintiffs' position, we
reject it. Moreover, as was the case with their APA/CWA arguments,
see supra Part III-D, the plaintiffs' record citations in support
of the claim that the BOEM did not ensure that the COP would be
carried out in a manner that provides for the statutory criteria
omit necessary context. They fail to acknowledge either the
mitigation requirements that the BOEM imposed in response to the
safety and environmental concerns raised, or that the concerns
were raised in connection with alternatives that the BOEM had
rejected.
judgment to the defendants on the plaintiffs' APA/OCSLA claims.
IV.
Before and after oral argument, we have received Fed. R.
App. P. 28(j) letters alerting us to recent developments that have
caused federal regulators to pause the project. These incidents,
occurring after the challenged agency decisions, are not relevant
to the arguments made in these appeals. See Town of Winthrop, 535
F.3d at 14 ("[T]he focal point for judicial review should be the - 51 - administrative record already in existence, not some new record
made initially in the reviewing court.") (quoting Camp v. Pitts,
411 U.S. 138, 142 (1973)).
For the reasons explained, we affirm the judgments of
the district court.
- 52 -
Related
Cite This Page — Counsel Stack
Seafreeze Shoreside, Inc. v. US Dep't of the Interior, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seafreeze-shoreside-inc-v-us-dept-of-the-interior-ca1-2024.