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Nuclear and fossil fuel advocates, wind foes among backers of right whale protection suits

  • Jan 22, 2022
Cape Cod Times

Jan. 21—When Nantucket Residents Against Turbines held a press conference in front of the Statehouse in Boston last August to announce it was suing the federal government for permitting a wind farm south of the island, media outlets noted the presence of David Stevenson, a former Trump transition team member and the director of energy and environment for a libertarian think tank.

They are seemingly odd allies: A group that has the stated goal of saving the highly endangered North Atlantic right whales from the impact of offshore wind farms standing shoulder-to-shoulder with someone who had appeared before state legislatures advocating for the Trump administration's proposal to renew Atlantic offshore oil and gas drilling.

In November, the Nantucket group, known by the acronym ACKRAT, helped announce the formation of the Save Right Whales Coalition with the stated goal of stopping offshore wind farms. One of the groups in the coalition was led by pro-nuclear power activist Michael Shellenberger and his California-based group Environmental Progress. Shellenberger believes nuclear power is the only abundant, reliable and inexpensive energy source.

"They are not part of our organization," Amy DiSibio, an ACKRAT board member, said of Environmental Progress and Stevenson's group, the Caesar Rodney Institute.

"There have been some coalitions formed where people interested in whales have some interests that go beyond the whales but our lawsuit is purely environmental and focused on the whale," she said in an interview last week.

ACKRAT's suit filed in U.S. District Court in Boston claims the federal Bureau of Ocean Energy Management — the lead agency in permitting Vineyard Wind 1, the 62-turbine offshore wind farm 14 miles south of Nantucket and the first utility-scale project in the country — failed along with other federal agencies to do an adequate environmental review of its impact on the marine environment, particularly its affect on right whales.

DiSibio said Stevenson and the Delaware-based Caesar Rodney Institute, helped with publicity, advice and some money. Stevenson also recently founded the American Coalition for Ocean Protection, which is fundraising to create a permanent wind energy exclusion zone along the East Coast out to 33 miles.

It's a familiar tactic, said Michael Gerrard, a Columbia Law School professor of environmental law and the director of the Center for Climate Change Law.

Finding the right plaintiffs

"We have a long history of industry opposition to environmental regulation and to clean energy projects. The lawyers bringing these cases always want to find the plaintiffs who are the most sympathetic and have standing to sue," Gerrard said. "For that reason, it's desirable to find groups like fishermen to be the face of the litigation."

The Alliance to Protect Nantucket Sound, for instance, counted fishermen and wealthy waterfront landowners as supporters in multiple lawsuits against the Cape Wind project, and had backing from fossil fuel interests in William Koch, owner of Oxbow Carbon LLC and a member of the alliance's board of directors. He also owned a home in Osterville on Nantucket Sound.

Cape Wind had unsuccessfully proposed to build the nation's first offshore wind farm with a 130-turbine project in Nantucket Sound. In 2017 it surrendered its federal lease on the project.

A recent lawsuit against Vineyard Wind, with similar claims to the ACKRAT suit of violations of the Endangered Species Act, Marine Mammal Protection Act and the National Environmental Policy Act, was filed on behalf of six fishing groups from ports from Long Island to New Bedford by the Texas Public Policy Foundation.

Greenpeace, the Texas Observer and other sources cite Koch Industries, ExxonMobil and Chevron, coal companies and other fossil fuel companies and interests as foundation donors. In 2015, the foundation launched its "Fueling Freedom Project" to oppose the Obama administration's Clean Energy Plan with a mission to "redefine the public conversation around fossil fuels, and especially their positive role in society."

The goal may not be to win a lawsuit.

"There certainly have been numerous suits against wind and solar projects that have torpedoed them, not because of favorable court decisions, but because of delay and uncertainty," Gerrard said. "It is often enough to derail a project. It can make people financing the project nervous and sometimes deadlines for tax subsidies are missed."

Gerrard pointed to the American Bird Conservancy, which has routinely spoken out against land-based and offshore wind projects on the basis that turbine blades kill birds.

In an October 2021 article on the nonprofit, the magazine Grist alleged the conservancy was accepting money from fossil fuel interests and inflating claims of potential and existing mortality from wind turbines. In response, Mike Parr, the conservancy's president, told the magazine that "a significant portion of the American economy is derived from oil wealth" and that "most philanthropic ventures have some oil investment."

The conservancy allied itself with the Alliance to Protect Nantucket Sound in opposing Cape Wind, saying in a comment letter to the federal Environmental Protection Agency that the science was poor and studies showed that "loons will likely abandon the area for years to come, and there may be significant impacts to endangered Roseate Terns." But in 2016, the Massachusetts Audubon Society concluded that after five years of review and three years of ornithological fieldwork, it found no discernible impact from the turbines.

And while they claim an interest in saving right whales, none of the groups involved in litigation have any history of activism, funding or research on their behalf.

Unknown 'grassroots' efforts

For decades, the New England Aquarium and its Anderson Cabot Center for Ocean Life have been researching and advocating for ways to save North Atlantic right whales, who number around 366 individuals, from extinction. Senior scientist Jessica Redfern said she's not familiar with any of these groups as right whale advocates and knows of no grassroots efforts out of Nantucket to save right whales.

"We haven't been involved with or approached by any of those groups," she said.

While ACKRAT claims it will be the wind farms that will drive right whales into extinction, Redfern said the greatest threats to their continued existence come from collision with vessels and entanglement in fishing gear, particularly lobster pot buoy lines.

"If you're really concerned about the fate of right whales, that's your focus," Redfern said. "Another big factor is climate change and one of the ways we can minimize that is adopting clean energy (policies) and offshore wind is a great source of that."

Climate change is the greatest overall threat to all marine species, particularly in the Northeast where the Gulf of Maine is warming faster than nearly any other marine water body on Earth. Researchers believe that temperature increases have affected the distribution of the copepod species calanus finmarchicus, the right whales preferred prey. These zooplankton prefer cooler, subarctic waters and right whales have largely deserted their traditional feeding grounds in the Gulf of Maine in recent years and ventured offshore and into cooler Canadian waters in search of food.

Unfortunately, that put them in the path of heavier lobster gear that requires stronger lines to withstand the currents and depths of fishing far from shore. Until recently, Canadian waters saw relatively few right whales and Canada didn't have the regulations now common in the U.S. requiring gear that whales could more easily break or shed, or procedures to detect and shut down areas to fishing and vessel traffic where the whales were congregating.

The result has been 34 dead right whales due to entanglement or vessel strikes since 2017, with another 16 with injuries serious enough to be deemed life-threatening, according to NOAA. This in the face of research showing that less than one right whale a year can die from human causes if they are to avoid extinction.

Redfern is in charge of the Anderson Cabot program that monitors and maps human impacts on whales including ship strikes, chronic noise, entanglement and minimizing impacts of wind energy. While initial survey work used to establish wind energy lease areas showed little right whale activity there, recent aerial and ship survey work has documented their presence year-round south of Nantucket and in the lease area.

It's something that has caused concern among whale researchers and conservation groups about the impact of wind farms on right whales.

Testing whale safety measures

A 2021 study by researchers from Anderson Cabot, NOAA and Center for Coastal Studies in Provincetown found that, on average, a quarter of the right whale population — including half the remaining breeding females — was using an area south of Nantucket and occasionally portions of the state wind energy lease areas. Researchers believed that with a median residency time of 13 days it was likely to be a transition area and not a major feeding or breeding ground.

Two years ago, Vineyard Wind signed an agreement with the Natural Resources Defense Council, the National Wildlife Federation and the Conservation Law Foundation that included seasonal restrictions on pile driving employed during the construction phase and a ban from January to April when right whales were more likely to be present. The agreement also called for increased monitoring by ship and aerial surveys as well as stationed observers on vessels, acoustic monitoring, restrictions on sound surveying, underwater noise reduction measures, reporting requirements and vessel speed restrictions.

The agreement could be revisited if the proposed plan didn't reduce impacts to close to zero. Vineyard Wind said findings from the 2021 study would be incorporated into its mitigation plan.

Redfern agreed with the study's conclusion that there was little science demonstrating the effects of wind farm construction and operation on right whales. "Because wind energy has not been developed in our EEZ (Exclusive Economic Zone, the so-called 200-mile territorial limit claimed by the U.S.), there's still a lot that we're going to learn as development occurs," Redfern said.

In 2019, a workshop convened by the Anderson Cabot Center and the Centre for Research into Ecological and Environmental Modelling developed a framework for studying the effects of offshore wind development on marine mammals and turtles. They postulated there was a high likelihood of short-term effects of displacement, and behavior disruption, but that it was also relatively easy to test for those impacts. A change in distribution — whales and turtles either avoiding or being attracted to wind farm areas — was considered a long-term impact of high probability that was also relatively easy to evaluate.

Along with other researchers, Redfern felt the construction and operation of the nation's first offshore industrial sized wind farm, Vineyard Wind 1, would provide researchers with the test area and research opportunities that could inform mitigation on succeeding projects.

"I do think we'll learn a lot from Vineyard Wind as a model for development along the East Coast," she said.

Follow Doug Fraser on Twitter:@dougfrasercct


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Mark Silverstone's picture
Mark Silverstone on Jan 30, 2022

Strange bedfellows, indeed. The height of hypocrisy and cynicism? Not likely to succeed.

Bob Meinetz's picture
Bob Meinetz on Feb 2, 2022

Mark, the reason we're at where we are now is that some view efforts to protect an endangered marine mammal as not only unimportant, but hypocritical, or cynical.

They believe cashing in on a current multi-$billion financial opportunity is more important than protecting a species from going extinct, one that has called the North Atlantic home for at least 12 million years (eubalaena glacialis). Others view their perspective as the height of selfishness, arrogance, and irresponsibility.

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