ELR Citation: 55 ELR 20070
No(s). 23-1886 (RK) (JBD) (D.N.J. Jun 11, 2025) (Kirsch, J.)

A district court denied summary judgment for a citizen group in a challenge to NMFS' issuance of incidental harassment authorizations (IHAs) and a letter of authorization (LOA) to wind developers off the coast of New York and New Jersey. The group argued the IHAs and LOA, which authorize take of North Atlantic right whales and humpback whales incidental to activities associated with offshore wind development projects, violated the Marine Mammal Protection (MMPA) and NEPA. The court found the claims regarding certain expired IHAs were moot, applied an exception to save from mootness the claims regarding the other expired IHAs, and concluded the group lacked standing. It further found that even if the group had standing, it failed to meet its high burden of proving NMFS' take estimates of North Atlantic right whales and humpback whales were arbitrary and capricious under the MMPA's "small numbers" and "negligible impact" requirements, but that NMFS' decision not to conduct a cumulative EIS or EA was arbitrary and capricious. It denied summary judgment for the group, and granted in part and denied in part NMFS' cross-motion.