Virginia offshore wind project underway as judge considers request for preliminary injunction

Three groups are suing Dominion Energy and federal agencies in charge of approving offshore wind projects to stop a project they say will harm whales, and they’re seeking a preliminary injunction to stop the project.

Dominion’s Coastal Virginia Offshore Wind project is a 176-turbine wind farm being constructed 27 miles off the coast of Virginia Beach. Last week, a hearing on the coalition’s request for a preliminary injunction was held.

The Heartland Institute, the Committee for Constructive Tomorrow (CFACT) and the National Legal and Policy Center, claimed that the company was forced to delay of the installation of monopiles, which are 31-foot wide, 272-foot tall towers that are pounded into the seabed to support the towers that will reach over 800 feet high at the tip of the blade.

However, Dominion Energy denied that any delay has taken place, and the company still plans to proceed with the pile driving this week.

President Joe Biden is committed to an aggressive buildout of offshore wind over the next several years. The coalition argues in their lawsuit that the these projects are threatening endangered whales, and the environmental assessments aren’t fully considering the cumulative impacts of all the different developments going up along the migratory routes of the endangered North Atlantic right whales.

Terry Johnson, a Virginia attorney who serves on the board of advisors for the CFACT, told Just The News that in a hearing last week, Judge Loren L. AliKhan of the United States District Court for the District of Columbia asked the defendants a number of questions about receipt of five different approvals to proceed with the construction.

“She particularly honed in on with respect to the federal defendants on these five concurrences that they need to receive from NMFS [National Marine Fisheries Service]. The answers she got were, I think, insufficient,” Johnson said.

The judge ordered the federal agencies and Dominion to file a status report by May 3, including if they have the proper permits, and the judge ordered Dominion and the federal government to file a response to the coalition’s injunction request by May 6. AliKhan also ordered the coalition to file its response to the government’s response by May 9. She is expected to rule on the preliminary injunction sometime after.

Dr. Sterling Burnett, director of the Arthur B. Robinson Center on Climate and Environmental Policy at the Heartland Institute, told Just the News that the defendants only had one preliminary approval in hand, but they weren’t able to say when they were going to get the approvals.

“I think the Dominion being Dominion, they're one of these companies that think it’s better to ask for forgiveness than permission,” Burnett said.

Jeremy Slayton, spokesperson for Dominion, told Just the News last week they intended to have approvals before the developer begins driving the monopiles into the seabed this week.

According to the joint status report Dominion and the federal government submitted Friday as per the judge’s orders, the company received all the necessary federal approvals and concurrences to commence pile driving.

The report states that 96 monopiles will be installed between May 1 and Oct. 31, which is “the time of year when North Atlantic right whales are not expected to be migrating near the project area.”

Burnett said that there are some whales in the area year-round.

“They don’t all just migrate through,” he said, adding that NOAA recently issued speed restrictions to shipping traffic to cut their speeds to 10 knots — about 11.5 mph — because North Atlantic right whales were spotted in the area.

In their response submitted Monday, the defendants argued that the plaintiffs only offered “vague and speculative statements about their alleged injuries resulting from various other ongoing and proposed wind development projects.” They also argue that the plaintiffs failed to demonstrate any likelihood of success on the merits of their lawsuit — a key element in obtaining a preliminary injunction — and that the cumulative effects of these projects have been reviewed as part of the permitting process.

Wind energy watch dogs are keeping a close eye on the permitting process for offshore wind development, which is expected to result in a large-scale industrialization of the nation’s coastlines.

In 2011, the Osage tribe in Oklahoma initiated a 12-year legal battle with another wind developer, Enel. The  Bureau of Indian Affairs warned the company in 2014 to “refrain from any further excavation of minerals” until they received the proper permits from the Osage. The company went ahead and constructed the wind farm without the approvals, and in December, a judge ordered the company to remove its turbines.

Burnett said that in that case, there was a sovereign nation to raise objections. With offshore wind development, it would be harder to win a case where the developer may have proceeded without the proper permits.

Dominion appears to have all the proper approvals to begin pile driving. Whether or not the project continues will be up to the court.