No. 23-1736

THOMAS MELONE,

Plaintiff, Appellant,

ALLCO RENEWABLE ENERGY, LIMITED; ALLCO FINANCE LIMITED,

Plaintiffs,

v. JANET COIT, in her official capacity of Assistant Administrator, National Marine Fisheries Service; NATIONAL MARINE FISHERIES SERVICE; VINEYARD WIND 1, LLC,

Defendants, Appellees,

DEBRA HAALAND, in her official capacity of Secretary of the Interior; JOHN A. ATILANO, II, Colonel, in his official capacity of Commander and District Engineer; MARTHA WILLIAMS, in her official capacity of Principal Deputy Director; US DEPARTMENT OF THE INTERIOR; BUREAU OF OCEAN ENERGY MANAGEMENT; GARY FRAZIER, in his official capacity of Assistant Director for Endangered Species; US ARMY CORPS OF ENGINEERS; US FISH AND WILDLIFE SERVICE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Kayatta, Lynch, and Gelpí, Circuit Judges. Thomas Melone and Allco Renewable Energy Limited on brief for appellant. Todd Kim, Assistant Attorney General, Environment & Natural Resource Division, U.S. Department of Justice, Mark Arthur Brown, Kevin W. McArdle, and Thekla Hansen-Young, Environment & Natural Resource Division, U.S. Department of Justice, and Lea Tyhach, and Gladys P. Miles, Office of the General Counsel, National Oceanic and Atmospheric Administration on brief for the federal appellees. David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, Jack W. Pirozzolo, and Sidley Austin LLP on brief for intervenor-appellee Vineyard Wind 1, LLC.

April 25, 2024 KAYATTA, Circuit Judge. This case is one of two appeals in which various residents of Martha's Vineyard and Nantucket oppose the construction of an offshore wind project aimed at reducing reliance on fossil fuels by providing energy sufficient to power 400,000 Massachusetts homes. Common to the two cases is the assertion that federal agencies failed to follow the law or good science -- as viewed by the residents -- in assessing the possible impact of the project on the endangered North Atlantic right whale. Our decision issued yesterday in Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, et al., (23-1501), rejected a challenge to a biological opinion issued by the National Marine Fisheries Service ("NMFS") and relied on by the Bureau of Ocean Energy Management ("BOEM") in permitting the construction of the wind power project. In this case, we consider a challenge to NMFS's issuance of an Incidental Harassment Authorization ("IHA") to the project's developer -- Vineyard Wind 1, LLC ("Vineyard Wind") -- the receipt of which was also necessary to construct the project. As we will explain, we find this challenge also to be without merit.

I.

We first briefly rehearse the statutory background, facts, and procedural history of the case.

- 3 - A.

The Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., generally prohibits the "tak[ing]" of marine mammals. 16 U.S.C. § 1371(a). "Take" means "to harass, hunt, capture, or kill" a marine mammal, or to attempt to do so. Id. § 1362(13). The MMPA then delineates two kinds of "harass[ment]." Level A harassment means "any act of pursuit, torment, or annoyance" that "has the potential to injure a marine mammal or marine mammal stock in the wild." Id. §§ 1362(18)(A)(i), (1