Coalition files intent to sue federal agencies to stop whale-killing Virginia wind project 

The Committee for a Constructive Tomorrow (CFACT) and The Heartland Institute today announced that they were filing with the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Service (NMFS) a 60 Day Notice of Intent to Sue letter for a violation of the Endangered Species Act. The violation is contained in a defective “biological opinion,” which authorizes the construction of the Virginia Offshore Wind Project (VOW).

The 60-day notice is required by the Endangered Species Act (ESA) for parties who wish to commence litigation against BOEM for failure to provide adequate protection of the North Atlantic right whale and other endangered species. The North Atlantic right whale is listed as “critically endangered” by the governments of both the Commonwealth of Virginia and the United States. Numerous studies by federal and environmental organizations have found that only about 350 North Atlantic right whales remain in existence.

CFACT and Heartland assert that the Biological Opinion issued by the NMFS fails to consider the cumulative impact of the entire East Coast offshore wind program ordered by the Biden administration, and ignores the “best scientific information available” about the endangered population of the North Atlantic right whale. The biological opinion found that the VOW would not cause a single death of that species of whale over its 30-year projected lifetime – although it did acknowledge the wind project could result in Level B harassment. That level could, according to NMFS, result in indirect death, necessitating the need for a “take” permit, which authorizes the “harassment” and potential killing of the North Atlantic right whale.

“This letter officially puts BOEM on notice that CFACT is prepared to file suit in order to expose the agency’s clear violation of federal law in failing to protect the North Atlantic right whale,” said Craig Rucker, president of CFACT. “By refusing to consider the cumulative impact of the dozens of industrial offshore wind facilities, consisting of several thousand individual turbines planned for the East Coast, it adopted a piecemeal approach, which only considered each individual offshore wind project in isolation. This is clearly a ploy to artificially reduce the total impact of these projects on the North Atlantic Right Whale. This obvious violation of federal law was ignored by the oversight agencies but will not be tolerated by the courts.”

“We need to send a message to BOEM and NMFS that there will be legal consequences if they violate legal requirements for protection of the North Atlantic Right Whale,” said H. Sterling Burnett, Ph.D., director of the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute. “The Biden administration’s plan to industrialize the oceans of the East Coast must follow the law, and we will intervene, if necessary, to make sure that the North Atlantic Right Whale continues to exist as a species.”

“BOEM has admitted that it produced noise control regulations for the North Atlantic right whale that were based on guesswork – not on the ‘best available science’ – as required by law,” said Collister Johnson, senior policy Advisor for CFACT. “They have funded ongoing studies that will finally produce information necessary to determine the noise impacts of offshore wind factories on baleen whales, such as the North Atlantic right whale. The results will not be available until 2025, at the earliest. This is a further violation of federal law, in addition to ignoring the cumulative impacts.

“There is a reason why Dominion’s stock price has declined by 50 percent over the past year,” Johnson added. “Investors know that Dominion’s wind project is a costly, risky gamble that has already driven most other East Coast wind developers to either renegotiate their utility contracts or abandon their projects altogether. If Dominion decided tomorrow to abandon this project, as it should, its stock price would improve dramatically, and a huge financial cloud hanging over its future would be removed.”

The 60-day notice letter instructs the federal government agencies to take corrective action to remedy the alleged violations. If no corrective action is taken, the signatories of the letter are allowed to seek relief through the courts. The most likely venue for this litigation would be the U.S. District Court for the District of Columbia.

The firm of Gatzke, Dillon, and Ballance has filed the letter as counsel for the CFACT and Heartland. The firm is currently representing plaintiffs in ongoing litigation against BOEM and NMFS, who are opposing construction of offshore wind projects in Massachusetts, New Jersey, and New York.

Earlier this year, more than two dozen large dead whales washed up on the shores of New York, New Jersey, and Virginia, directly following 11 offshore sonar mapping activities conducted by wind developers. These “site characterization” studies use high-powered sonar pulses to determine the proper areas for placing the wind turbines. Sonar mapping has been found to interfere with the hearing capabilities of marine mammals. Environmental groups have successfully sued the Navy to restrict sonar mapping being conducted in the Pacific Ocean.

The 60-day notice adds to the risks faced by Dominion Energy as it attempts to build an offshore wind generation facility that would be the largest such project of its kind in the world. Siemens Energy, which has been designated by Dominion as the supplier of the huge 14MW turbines for the project, recently announced a write-down of 2.4 billion for the 3rd quarter, leading to an annual loss of €4.5 Billion, due to costly mechanical failures in its new wind turbines. The company has said its turbine failures are a “quality issue” which “will take years to fix.”

Measured in megawatts, some 80 percent of the proposed East Coast wind projects have either been abandoned or are in the process of trying to renegotiate their power purchase agreements.