Lawsuit challenges Vineyard Wind approval

Accuses feds of not protecting right whales, negotiating bad deal

A LAWSUIT CHALLENGING the federal approval of the nation’s first industrial-scale offshore wind farm off the coast of Massachusetts raises questions about the haste with which the project was approved and the fallout it will have on endangered right whales and the fishing industry.

The lawsuit, filed on Monday in federal court in Washington, DC, by the Responsible Offshore Development Alliance, which represents fishing interests, also highlights the dramatic scale of the wind farm and questions whether taxpayers were shortchanged by the leases the federal government negotiated with the developer, Vineyard Wind.

The lawsuit is one of a handful challenging the project on the grounds that several environmental statutes were violated in the Biden administration’s rush to kickstart the offshore wind industry.

Vineyard Wind filed its construction and operations plan initially in 2017. The Trump administration decided to extend its review indefinitely in 2019 to take into account the many offshore wind farms planned up and down the coast.

On December 1, 2020, Vineyard Wind withdrew its construction and operations plan and the Bureau of Ocean Energy Management terminated its environmental review of the project.  On January 22, 2021, after Joe Biden took office as president, Vineyard Wind asked that the environmental review resume and the Biden administration complied. A final environmental impact statement was approved in May and the construction and operations plan was greenlighted in July.

The assessment of the impact of the project on North Atlantic right whales changed only slightly during the final review process, with the Bureau of Ocean Energy Management concluding that vessel noise and traffic “may affect, but is not likely to adversely affect” protected species, according to the lawsuit.

Regulators granted approval for an “incidental take” of 14 different types of fish species over the course of a year of construction, including 10 North Atlantic right whales out of a total estimated population of 400. Other projected casualties are 3,484 short-beaked common dolphins, 222 bottlenose dolphins, 540 gray seals, 540 harbor seals, 25 long-finned pilot whales, 8 fin whales, and 5 humpback whales, according to the lawsuit.

The Biden administration approved Vineyard Wind on July 15, authorizing the company to construct as many as 84 turbines — each one extending 837 feet above the ocean surface — on 65,294 acres of seabed. The lease cost $195,888 a year, or $3 per acre.

The same decision also granted Vineyard Wind a 23.3-mile easement to run a power cable from the wind farm to a Barnstable electrical substation. A little over two-weeks later the Army Corps of Engineers acknowledged the easement lease was incorrect and needed to be extended another 16.1 miles to reach shore, according to the lawsuit. The lease price for the easement was $17,155, or $5 per acre.

The lawsuit alleges the federal government negotiated a very bad lease deal with Vineyard Wind, given that the lease payments will add up to less than $3.5 million over the 30-year life of a wind farm that is costing $2.3 billion to build. It’s unclear how much revenue Vineyard Wind will receive over the course of the project from electricity ratepayers in Massachusetts.

The lease payments are far less than the fishing industry is receiving from the wind farm. According to the lawsuit, Massachusetts fishermen will receive nearly $21 million, Rhode Island fishermen $16.7 million, and fishermen from other states $3 million.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

The lawsuit also raises questions about safety, noting that the regulatory approvals contained no safety or engineering analysis of the General Electric Haliade-X wind turbines the project is using.

“With all the government regulation in place to ensure the safety of virtually every other product and structure in the United States, here there is none,” the lawsuit says. “Instead, the Bureau’s Final Environmental Impact Statement simply cites an assertion by Vineyard Wind that the turbines ‘would be designed to endure sustained wind speeds of up to 112 miles per hour.’ Hurricane Bob, which occurred in 1991 near the project site, was a Category 2 hurricane on the Saffir Sampson Scale (sustained winds 96-110 mph) when it made landfall, suggesting its wind speeds exceeded 112 mph as it passed through the project area.”

Asked in September about the safety of the turbines, Lars Pedersen, the CEO of Vineyard Wind, said he had no concerns since all components are designed to withstand 100-year events. “We are well within the envelope,” he said.