The U.S. District Court for the District of New Jersey has upheld the federal government’s issuance of authorizations under the Marine Mammal Protection Act (“MMPA”) to several offshore wind projects to be constructed offshore New York and New Jersey. Judge Robert Kirsch granted summary judgment in favor of the federal government and the defendant-intervenors, including Empire Offshore Wind LLC (“Empire Wind”), and denied plaintiffs’ claims that the approvals were improper under both the MMPA and the National Environmental Policy Act (“NEPA”).[1]
Plaintiffs Save Long Beach Island (“SLBI”) and Robert Stern, Ph.D., a Long Beach Island resident and member of SLBI, filed suit against the National Marine Fisheries Service (“NMFS”) alleging that NMFS’s issuance of one-year Incidental Harassment Authorizations (“IHAs”) to several offshore wind developers for surveys and NMFS’s issuance of a Letter of Authorization (“LOA”) to Empire Wind for construction and operation of the Empire Wind Project violated the MMPA and NEPA. Specifically, the plaintiffs alleged:
- NMFS acted arbitrarily and capriciously in determining each authorization’s impacts on whales and failed to satisfy the MMPA’s requirement that activities impact no more than “small numbers” and have only a “negligible impact” on marine mammals.
- NMFS violated NEPA by failing to consider the cumulative impacts of all authorizations in a comprehensive Environmental Impact Statement.
The Court considered several procedural issues before considering the merits of the plaintiffs’ claims. First, the Court granted the government’s motion to exclude several documents from the record. The Court found that the plaintiffs’ filing of several declarations and a scientific study were improper, as these documents were not contained in NMFS’s administrative record and plaintiffs did not seek to supplement the administrative record pursuant to the Court’s procedures.[2] The Court evaluated one of the plaintiffs’ declarations to evaluate standing, but not the merits of the claims.
The Court next considered the mootness of certain claims challenging expired IHAs. The Court held that claims against now expired IHAs that had not been renewed by each project were moot. The Court found that the IHAs that had been renewed qualified for the “capable of repetition, yet evading review” mootness exception, as the terms of the renewed IHAs are essentially the same as they were at the time the complaint was filed.[3]
For the remaining challenges to the IHAs and to Empire Wind’s LOA, the Court concluded the plaintiffs lacked standing. The Court found that Dr. Stern’s “vague” descriptions of watching unspecified whales in the large geographic region that is the New York and New Jersey Bight was not sufficient to establish a concrete injury directly impacted by the conduct at issue. Judge Kirsch emphasized his desire to more closely follow the Supreme Court’s decision in Lujan v. Defenders of Wildlife, rather than the District of Massachusetts’s decision in ACKRATS v. BOEM, which held a Nantucket resident’s allegations of watching North Atlantic right whales in the waters off Nantucket were “marginally sufficient” to support standing.[4] The Court held that because Dr. Stern did not have standing, SLBI could not assert associational standing.
Despite its jurisdictional rulings, the court still considered the merits and held that even if the plaintiffs had standing, their claims failed on the merits. IHAs and LOAs can only be issued under the MMPA if the activities authorized are only expected to impact “small numbers” and if the activities will have no more than a “negligible impact” on the species.[5] The Court upheld NMFS’s use of “a proportional standard” to calculate the percentage of a population of marine mammals affected to determine what constitutes “small numbers.”[6] Although the Court declined to adopt a bright line rule for what qualifies as a small number, the Court found all the percentages expected to be impacted by each challenged authorization were far below 12%, a threshold advocated by plaintiffs. The Court also held that NMFS did not act arbitrarily or capriciously when determining that the issued authorizations would constitute no more than a “negligible impact,” as NMFS properly considered all available evidence and concluded any impacts on whales would be minor and temporary.
Finally, the Court rejected the plaintiffs’ challenge under NEPA. Judge Kirsch noted that the NEPA regulations requiring an assessment of cumulative impacts of separate actions, such as other offshore wind projects in the area, are no longer in effect. The Court further held that pursuant to Seven County Infrastructure Coalition v. Eagle County, agencies are owed deference to decide whether to consider the cumulative impacts of multiple actions in a comprehensive Environmental Impact Statement.[7]
The decision is a significant litigation victory for the U.S. offshore wind industry and confirms that the multi-year reviews by key federal agencies were robust, comprehensive, and legally sound. The Court’s decision is no outlier but is consistent with prior district court decisions addressing similar issues, like ACKRATS v. BOEM and Melone v. Coit, as well as appellate opinions affirming these decisions.[8]
Bracewell represented Empire Wind in the litigation.
Carsyn Kenny co-authored this blog post.
[1] Save Long Beach Island, et al. v. U.S. Dep’t of Commerce, et al., No. 3:23-cv-01886-RK-JBD, Dkt. No. 144 (D.N.J. June 11, 2025) (“Opinion”).
[2] Opinion at 26-27.
[3] Opinion at 30-34.
[4] Opinion at 56, citing ACKRATS v. BOEM, 675 F.Supp.3d 28, 49 (D. Mass. 2023); Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
[5] 16 U.S.C. § 1371(a)(5)(D)(i); 50 C.F.R. § 216.103.
[6] Opinion at 59-61.
[7] Opinion at 69, citing Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975, 2025 WL 1520964, at *3, *13 (U.S. May 29, 2025).
[8] ACKRATS v. BOEM, 675 F.Supp.3d 28 (D. Mass. 2023), aff’d, 100 F.4th 1 (1st Cir. 2024); Melone v. Coit, No. 1:21-cv-11171-IT, 2023 WL 5002764 (D. Mass. Aug. 4, 2023), aff’d, 100 F.4th 21 (1st Cir. 2024).
