Paul Weiland Comments on Loper Bright and Its Potential Impact on Wind Challenge Cases
Paul Weiland was quoted in the Recharge article “Vineyard lawsuit could fail but still shape future US offshore wind challenges: legal experts” (subscription required). The article provides an overview of a petition for writ of certiorari filed before the U.S. Supreme Court in the latest action by Nantucket Residents Against Turbines to stop offshore wind development by Vineyard Wind in the federally designated Massachusetts and Rhode Island wind energy areas.
One element of the challenge alleges “in failing to also assess the cumulative impacts of largescale offshore wind development planned for the wind energy areas near Vineyard, federal agencies failed to use ‘the best available scientific and commercial data available’ as required by the Endangered Species Act (ESA).”
The petition — which legal industry watchers say has long odds of getting heard — also calls for the Supreme Court to set aside the environmental impact statement (EIS) for the project and grant an injunction against the project's ongoing construction “until such time as the federal defendants have complied with the applicable ESA and National Environmental Policy Act mandates.” The Nantucket group's prior suit regarding the project’s approval was dismissed in federal district court and the dismissal was later upheld in the First Circuit.
In the article, Recharge News highlights how the Nantucket group employs the Loper Bright ruling in its most recent lawsuit, and how this could impact the challenge. The Supreme Court’s ruling in Loper Bright does away with legal precedent that requires judges to defer to an agency’s interpretation of an ambiguous statute via rulemaking. The group’s current challenge before the Supreme Court posits that Loper Bright “leaves no doubt that the Courts — not marine biologists — must determine the validity of the agencies' biological opinion with reference to the plain language of the ESA.”
Commenting on the use of Loper Bright in the lawsuit, Paul said, “The case may struggle with its own political contradictions” as the Supreme Court, dominated by conservative justices, has through Loper Bright and other decisions, “pared back on the authority of administrative agencies in certain circumstances, and what they're asking them here is to instruct those agencies to be more aggressive.”
He added, if the Nantucket group “succeeds, it will complicate efforts of others in the future who will be similarly required to take into consideration cumulative effects of not just their action but other [federal] actions.”
