Right whale and calf from above.
The endangered right whale has been a species of particular concern in areas targeted for offshore wind development. Credit: NOAA / Creative Commons

The solar developer suing in federal court to overturn approvals for the country’s first utility-scale offshore wind farm is now taking aim at a second project. 

Thomas Melone, president of Allco Renewable Energy, in February amended his complaint against the Vineyard Wind project to also call into question government approvals for South Fork Wind, a smaller project with different owners.

Vineyard Wind’s 62 turbines are to be located about 15 miles south of Martha’s Vineyard, Massachusetts, the island community where Melone has a summer home. South Fork Wind’s 12 turbines are much farther away — about 35 miles east of the eastern tip of Long Island, New York. 

In his amended complaint, Melone argues that both projects pose a threat to his personal enjoyment of migratory birds that frequent his Edgartown property, as well as to the endangered North Atlantic right whales that sometimes inhabit Nantucket Sound, and which he tried to get a peek at on a whale watch last year.  

In addition, Melone argues that what he views as the unlawful approvals of the offshore wind projects effectively reduce Allco’s business prospects, as there will ultimately be less demand for solar generation projects as a result. 

“Allco’s economic interests are part of the human environment affected by the defendants’ actions,” he wrote in the complaint. 

Initially filed last July, the lawsuit in U.S. District Court targets five federal agencies. It cites 18 counts of their alleged failure to follow various federal laws, including the National Environmental Protection Act and the Endangered Species Act. 

Vineyard Wind is an intervenor in the case. A joint venture of Avangrid Renewables and Copenhagen Infrastructure Partners, the company noted in court filings that they have undergone a 10-year regulatory process and invested some $300 million in the project to date. 

Allco’s lawsuit has been followed by at least four other lawsuits challenging Vineyard Wind, including two representing the interests of the commercial fishing industry.

Mass Audubon has also expressed concerns about the impact of Vineyard Wind on birds and marine life. The organization weighed in throughout the federal review process, calling for continued data gathering and monitoring of wildlife impacts throughout the construction process and after completion. But their official position is that climate change is “by far the biggest threat to all birds living today,” and they support responsibly sited offshore wind projects as a way to reduce greenhouse gas emissions.

A ‘theoretical worry’

The legal challenge by Melone, who is also a lawyer, has drawn attention for a few reasons. For one thing, it pits one renewable energy developer against another. Allco and its subsidiaries have dozens of solar projects in operation in at least eight states, including Connecticut, Massachusetts and Vermont. 

Melone’s name is also familiar to many. In 2010, he filed a similar challenge to Cape Wind, a project approved for Nantucket Sound that ultimately fell victim to more than two dozen lawsuits. He is also known more broadly for his litigiousness, as he regularly challenges laws or policies he sees as too restrictive or detrimental to solar development.

Lawyers representing the defendants in the Vineyard Wind case are seeking its dismissal, arguing in a motion earlier this month that Melone has failed to demonstrate that approval of the project will directly cause him harm. Claiming potential harm from the South Fork project is especially “speculative,” they argued, as the project area is 20 miles south of Martha’s Vineyard.

His complaint mainly relies on a “theoretical worry,” they said — “the ‘promise’ of an entire industry that might someday compete with his.”

Melone’s amended complaint goes to much greater lengths than the earlier one to establish his environmental and aesthetic interests. He notes that a beach area near his Edgartown home includes a spot his family dubbed “Bird Island” because of the “thousands of migratory birds that nest and habitat there each year.” 

At high tide, he says, the area occupied by the birds effectively becomes an island. 

He and his family derive “recreational, conservation, environmental well-being and aesthetic benefits” from observing the birds, he said. But the turbines in both wind projects “are practically certain to kill one or more of the migratory birds,” reducing the number of birds they can enjoy.

As for his interest in the right whales, Melone cited his unsuccessful whale watch last year — he only saw “a handful” of humpbacks — as well as his attendance last year at a conference about the whales’ plight. 

In addition, he recounted a trip to Fernandina Beach, Florida, last December, where he participated in a North Atlantic right whale watch from a fifth-floor room at a Ritz Carlton hotel using binoculars. He eventually spotted a right whale and her calf, the complaint said.

Melone said he is concerned about the impact of the wind projects on the right whales, whose habitat includes Nantucket Sound. And the project approvals would cause him imminent harm by reducing the likelihood that he will again spot right whales in Fernandina Beach. 

He already has another trip there planned for this December. And come June, the complaint says, he will again board New England Aquarium’s whale watch cruise, hoping for better luck.

Lisa is a longtime journalist and native New Englander based in Connecticut. She writes regularly about housing, development and business for the New York Times. Her work has also appeared in the Boston Globe, CNBC.com, Next City and many other publications. She is the author of "Snob Zones: Fear, Prejudice and Real Estate." Lisa covers New England.