Government Violated Federal Law Concerning Massive Wind Farm Project.

This case involves a huge offshore aerogenerator project off of Cape Cod, MA.  The U.S. Fish and Wildlife Service (FWS) failed to conduct a "feathering operational adjustment" under the Endangered Species Act (ESA) with respect to the roseate tern and piping plover which, if required, would cause a seasonal shut-down of generators.  The court determined that such failure was violated the ESA, and granted summary judgment to the plaintiffs on this issue.  The court also granted summary judgment to the plaintiffs on their claim that the National Marine Fisheries Service (NMFS) violated the ESA by not issuing an incidental take statement concerning North Atlantic right whales.  On this issue, the court noted that the "harassment, killing or harming" of any threatened or endangered species qualified as a "take" under the ESA.  Public Employees for Environmental Responsibility, et al., No. 10-1067 (RBW) (DAR), 2014 U.S. Dist. LEXIS 33129 (D. D.C. Mar. 14, 2014).