Lawsuit filed to halt offshore wind farm in Virginia, citing concerns for whales

An environmental lawsuit filed by a handful of conservative groups could interfere with Dominion Energy’s plans to begin constructing Virginia’s offshore wind project on May 1.

The Heartland Institute, the Committee for a Constructive Tomorrow, and the National Legal and Policy Center alleged that federal agencies, as part of their environmental assessment of the project, neglected to perform a full analysis of the harm that could come to the endangered North American right whale as a result.

The plaintiffs argue that the Bureau of Ocean Management and the National Marine Fisheries Service are legally compelled to evaluate – not just the potential harm from the Virginia project – but the dangers the project might pose to the species in combination with the dozens of other offshore wind projects along the East Coast.

“What BOEM and Marine Fisheries did is carve this integrated program of putting offshore wind off the East Coast – they carved it into little pieces. There’s a little piece here, which is Virginia, and a little piece there, which is Maryland, another piece which is New York,” Collister Johnson, Jr., senior adviser to the Committee, told The Center Square. “The courts are really clear that you can’t do that and minimize and understate what the actual harm is.”

The lawsuit calls for the indefinite postponement of construction until the Bureau has “developed a new ‘biological opinion’ providing verifiable protection against potential harm to the North Atlantic right whale caused by these projects." Paul Kamenar, counsel to the National Legal and Policy Center, says this is a reasonable request.

“They have to do that scientific work…. They have to be very particular on it,” Kamenar told The Center Square. “The more endangered the species, the more they’ve got to make sure the mitigation efforts are substantial,” Kamenar told The Center Square.

Marine Fisheries quantifies the chances of survival for endangered aquatic species. With only about 360 North Atlantic right whales left and about 70 females that can reproduce, the Fisheries calculated that losing even one whale per year due to human causes poses a large threat to the species.

In his first week in office in 2021, President Joe Biden issued an Executive Order on “Tackling the Climate Crisis at Home and Abroad,” committing to developing renewable energy sources in the United States, particularly offshore wind. Biden’s goal was “to deploy 30 gigawatts of offshore wind in the U.S. by 2030,” enough to power 10 million homes, according to the Department of the Interior.

Currently, at least 30 active and commercial offshore wind lease areas along the Eastern Seaboard “[constitute] an area larger than the states of Rhode Island and Connecticut combined,” according to The Heartland Institute. These lease areas lie along the whales’ migratory path, which they travel twice a year.

While the plaintiffs don’t embrace the idea that climate change is a serious threat to the right whale's survival, they are concerned about installing at least 2,000 wind turbines along the East Coast.

Only two operational offshore wind farms on the East Coast now contain seven wind turbines. Marine Fisheries repeatedly acknowledged in its biological opinion the challenge of drawing conclusions about large-scale wind farms, like the Virginia project (which would host 127 turbines), from the existing sites.

Marine Fisheries didn’t identify any major adverse effects to the right whale from the Virginia project besides “temporary behavioral disturbance and/or temporary threshold shift in hearing,” which it made recommendations for.

BOEM does not comment on pending litigation.

The suit was filed with the U.S. District Court of the District of Columbia.