By CFACT Ed
Lawsuit filed by The Heartland Institute, the Committee for a Constructive Tomorrow (CFACT), and the National Legal and Policy Center
Construction of Dominion Energy’s offshore wind project comes as more and more dead whales are washing up on the Atlantic Coast
The North Atlantic right whale is so critically endangered that federal agency says it can endure not even one human-caused death a year
WASHINGTON, D.C. (March 18, 2024) – A coalition of public interest groups today is filing a lawsuit in the U.S. District Court for the District of Columbia against Biden administration officials and agencies seeking to overturn their approval of a massive wind turbine project off the shore of Virginia. The intent of the litigation is to stop Dominion Energy’s plans to start construction on May 1 in order to protect the North Atlantic right whales.
The lawsuit – which names the Bureau of Ocean Energy Management (BOEM), the National Marine Fisheries Service (NMFS), and others – claims the agencies illegally approved Dominion Energy’s offshore wind project by ignoring glaring and obvious procedural errors that subjects the endangered North Atlantic right whale to further grave harm.
At a time when incidents of dead whales washing ashore on the Atlantic coast are spiking, the lawsuit would force Dominion to cease construction of massive wind turbines for its Virginia Offshore Wind (VOW) project in the migratory and feeding waters of the North Atlantic right whale – of which experts say only about 350 individuals remain. The suit claims BOEM’s “biological opinion” issued in September 2023 wrongly determined the project would not produce any irreparable harm for the whale as a species during either the construction, operation, or decommissioning phase of the project.
READ A PRE-FILING DRAFT OF THE LAWSUIT HERE.
The VOW project consists of the 176 giant wind turbines – each tower taller than the Washington Monument, with turbine blades longer than a football field – to be constructed in the open ocean 25 miles off the coast of Virginia Beach, Virginia. If completed, the project would be the largest of its kind in the world.
This Dominion Energy project is but one of many massive offshore wind projects mandated by an executive order issued by President Biden on January 27, 2021, declaring that a “climate crisis” exists that “threatens mankind’s existence. The Biden administration has given fast-track approval to dozens of wind projects off the East Coast, with the goal of producing 30 gigawatts of electricity by 2030.
In issuing its “biological opinion” in September, NMFS only examined the impact that each of these projects, individually and in isolation, would have on the North Atlantic right whale. The agency did not, as it should have, issue a comprehensive and cumulative analysis examining the combined harm that all of the projects, together, would inflict on the whales during their annual migration path.
The courts, including the federal courts of the District of Columbia, have uniformly ruled that this approach is illegal in other endangered species cases because it misconstrues the language of the Endangered Species Act and creates, in the words of one court, “a type of slow slide into oblivion that is one of the very ills the Endangered Species Act was designed to prevent.”
The amount of federal waters leased for these projects constitutes an area larger than the states of Rhode Island and Connecticut combined. The North Atlantic right whales would be forced to navigate a gauntlet of 32 separate lease areas from Georgia to Maine twice each year.
This lawsuit would cause Dominion to halt construction on the project until BOEM has developed a new “biological opinion”, providing verifiable protection against potential harm to the North Atlantic right whale caused by these projects.
A total of 55 dead right whales have washed up on the beaches of the East Coast since 2017, causing the federal authorities to declare an “unusual mortality event” and create two areas of “critical habitat” for the whale – one off the coast of Maine and one off the coast Georgia. The North Atlantic right whale is a critically endangered species with only about 70 females capable of producing newborn calves.
The North Atlantic right whale is so critically endangered that NMFS has issued a determination for the chances of survival for the species called the Potential Biological Removal Rate (PBR). The PBR for the NARW is 0.7, which means that if the species is to survive, there must be zero human-caused mortalities of the NARW on an annual basis.
The following statements may be used with attribution. For more comments, to schedule an interview, or to speak to the attorneys handling this case, please contact VP and Director of Communications Jim Lakely at jlakely@heartland.org or call/text 312-731-9364.
Craig Rucker, president of CFACT and also one of the individual litigants, said, “This piecemeal, incremental step analysis by BOEM is a textbook violation of the Endangered Species Act. Every court, including the District of Columbia, has held this individual approach to be illegal. Dominion Energy must be prevented from engaging in any offshore construction until the NMFS issues a properly determined Biological Opinion.”
Heartland Institute President James Taylor said: “This erroneous biological opinion issued by NMFS is a classic example of abdication of its duty to provide meaningful protection for an endangered species. Playing politics with such an iconic species as the right whale is an unfortunate example of the Biden administration’s allegiance to climate alarmism.”
Peter Flaherty, Chairman of NLPC, said: “This project is not in the interests of Dominion Energy shareholders or customers. It was only approved because Dominion Energy has undue influence on Virginia politics through outsized contributions to both Democrats and Republicans. Because the political process is so tainted, we are pleased to join with CFACT and Heartland to make Dominion accountable through the courts.”
Marc Morano, founder of Climate Depot, said: “I am grateful that CFACT has stepped forward and filed a suit with such an obvious likelihood for success to halt the construction of these offshore wind monstrosities. This is nothing less than the industrialization of the habitat of the right whale, and the claim that construction of these wind factories will positively impact the climate is ludicrous.”
The plaintiffs are represented by David P. Holland, an experienced environmental lawyer with the law firm of Gatzke Dillon & Ballance LLP in Carlsbad, CA, and Paul D. Kamenar, Washington, D.C, counsel to the National Legal and Policy Center.
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Read a pre-filing draft of the lawsuit here
Do they know what is causing the mortality? Is it toxic lubricants leaking from the windmills? Or low frequency noise pollution that is affecting the whales’ hearing and communication? Or is it just the maze of towers is confusing and exhausting them them? Or is a case of “Father, forgive them for they know not what they do.” If the latter, then the Precautionary Principle could apply.
No maize of towers yet. We want a serious assessment of the risks before these maizes are built, including the cumulative impact of the 30+ maizes planned so far with more coming. Noise is a big problem but there are others. Noise can drive whales into shipping lanes and fishing nets.
Maize is corn.
Mazes are where people, rats and mice are put to drive them crazy.
Funny how 50 years ago it was hippies on the Left shouting save the whales, now it is conservatives saying it.
At least they’re doing it for the “Right” reason and not trying to protect the Wrong Whales.😘
We need to get them renamed “Left whales” or maybe Progressive whales”. The current administration is fine with destroying anything and anyone “right”.
Did you know the term “right whale” refers to whales that were the correct ones to hunt?
This is because the hippies and their progeny now want green industrialization of the ocean.
😎
I’m almost 70.
Lot’s of hippies went to California and reproduced and raised little hipsters who then reproduced and, well, we’re stuck with today’s Califlowernia.
But some hippies stayed behind. They gave us Vermont and much of the north east coast.
(I lived in New Hampshire for a few years. When I moved to Concord (The state’s capital.), I was struck by how many of the nutty groups HQ’s seemed to gather there. I didn’t notice those groups anywhere else I lived or visited.)
Maybe genuine conservationist rather than “environmentalist” are filling in the void left by the Left going all “CAGW”?
Sounds like an old crow…CAGW CAGW CAGW
I decided long ago that naturalist was the correct term as conservationists and environmentalists lost their plots, picked up the charity donations and gave themselves large salaries and even larger egos.
Did a bit of research before commenting. Atlantic right whales have been listed IUCN RED (most endangered) since 1970, and have been on the ESA critically endangered list since the Act passed in 1973. You can read it at 16USC35§1531 af.
Since right whales migrate from summer feeding grounds off New England and Newfoundland to winter calving grounds off SC, GA, FL, the ESA requires protection along the entire migratory path. Considering a VA off shore wind project in isolation as opposed to all the projects proposed along the entire migratory path is improper. Settled ESA case law.
Interesting factoid. Most of the IUCN species of concern fall in just two classes: migratory, or newly discovered because occupy only a small ecological niche.The migratory reason is habitat loss along the migration pathway.
Another interesting factoid. Ocean noise is the third worst right whale danger after fishing gear entanglements and boat strikes. My understanding is that doing the acoustic seabed surveys and then driving the seafloor turbine piles are both very noisy. And certainly turbine maintenance will significantly increase subsequent boat strike danger.
I am hopeful that this new lawsuit will prevail under already settled ESA law.
Indeed a cumulative impact assessment as called for by ESA is what the Court is being asked to order, but including a moritorium on construction until that is done is also requested. That is a much bigger ask since the piles are there, ready to be driven. Stay tuned.
Dunno. The pipe to complete Keywest North sat for years in piles while the regulatory permissions duked it out.
Keywest North aka Keystone XL pipeline. Brain cramp.
It is interesting procedurally. All they ask is that the Court void the Biological Opinion for the VA project and order it redone. But under the law Dominion cannot build without a final Bio Op. I suppose an exemption can be granted allowing them to proceed. Given Dominion wants to start pile driving in May this part may get decided quickly.
But your point about Keystone is a good one. The Mountain Valley Pipiline has been held up for years despite being 90+% complete.
What I love about WUWT comments is I get stuff for articles here.
Yeah, Rud but the Powers That Be want these industrial developments. Lapdog Federal agencies do what the Leftist politicians want. I assume it will take a SCOTUS intervention to get the agencies to follow Federal law …. again.
Only until next week when they think up a different end run around the law.
True but SCOTUS is a real possibility because this issue affects (infects?) all Federal OSW projects.
From Donna Laframboise web site:
“Rejoice! We Have Millions of Whales
Somehow, I don’t think we’re going to see Green Peace maneuvering small boats under the offshore windmill construction cranes. They know how to follow the money.
Small boats cannot maintain giant offshore wind turbines.
I believe this is a reference to Greenpeace’s past practice of using small boats to get between industrial whaling ships and their targets. IIRC, France’s military response was to sink Greenpeace’s Rainbow Warrior flagship.
ANother one bites the dust:
https://www.foxbusiness.com/technology/tesla-battery-catches-fire-illinois-shutting-down-highway-hours-report
story tip
The “cyber truck” which I refer to as the Clown Truck is creating stories at a fast rate….woman dies after backing into pond and rescue people can’t break the bullet proof glass to save her…rear wheels come off another truck….Musk is one of the biggest con men of all time.
Ghost Riders in the sky….are wondering why….why the sea surface temp has been rising for a year at a scary rate….and why CH4 has been rising at an alarming rate for about 12 years now.
I’m really shocked by this development, Two fossil fuel company sock puppets (Heartland and CFACT) are now deeply concerned with whales’ welfare. Apparently whales can’t hear the racket from submarines, off shore oil rigs, cargo ships, oil tankers etc. Nor, it seems do they mind the pollution form them. They are, however, deeply sensitive to the sound from constriction of off shore wind turbines.
Who could doubt the sincerity of their obviously deep concern for whales’ welfare. I’m touched.
“Look, Martha, it’s a dead thread-fornicating troll. And not a clever one.”
Clueless
WUWT has published several articles on the plight of the Right Whale over the last 12 months covering subjects from surveys to construction and how all of this affects the whales.
Maybe if you’d read the article and some of the related articles you may have learned something.
The development of petroleum as a fuel was very beneficial to whales, which were previously hunted to provide whale oil.
The Right Whales have nothing to worry about, GreenPiss will save them
(/sarc – if required)
From the article: “This Dominion Energy project is but one of many massive offshore wind projects mandated by an executive order issued by President Biden on January 27, 2021, declaring that a “climate crisis” exists that “threatens mankind’s existence.”
The whole windmill project is based on this BIG LIE.
How about a lawsuit challenging these claims?
Shouldn’t the federal government be required to prove that CO2 is dangerous before taking action to curtail it?
There is NO evidence that CO2 is anything other than a benign gas, essential for life on Earth.
Here’s how it is supposed to work: First, you prove something such as a CO2 crisis exists *before* you declare it exists. You don’t declare something exists before establishing that it exists, as Biden and the Climate Alarmists do here. Their dire CO2 claims are based on nothing but speculation, assumptions and unsubstantiated assertions. There is not one shred of evidence to back up these CO2-is-dangerous claims.
Yet we are bankrupting our economy and killing protected species without any evidence that any of this CO2 reduction is necessary.
We are living in a radical leftwing CO2 delusion, at the moment. Somebody should make them prove their CO2 claims. It’s insane to try to curtail CO2 when there is no evidence this is needed.
Yes, Virginia, delusional people can be elected to public office. That is the situation at the present. We have a delusional president and a delusional Democrat Party running things into the ground because of their delusions (btw, I consider promoting leftwing ideology to be delusional).
So whether the Left is promoting CO2 reduction because they fear CO2, or because they want to use the CO2 issue to gain political power and money, it doesn’t change the fact that they are delusional when it comes to reality. Their CO2 nightmares are delusional, and thinking leftwing ideology is the way to go is also delusional.
Take a look at what just happened in France with onshore industrial scale wind turbines.
France’s Council of State decries industrial wind turbines, calling them illegal, requiring full environmental assessments
Extinction of this right whale can be seen and measured.
The effect of replacing hydrocarbon fuelled electrical generation with windmill generators cannot presently be measured. It might be shown in time that it has had trivial benefit.
What would a reasonable person vote for? Why are they never asked?
Geoff S
“ to protect the North Atlantic right whales.”
This is blatant whale racism! What about the traditionally marginalized wrong whales?
Stop windmills? These aren’t windmills but large scale turbines set up in an industrial scale.
The process to establish them is extremely invasive (even on land) and their use disrupts the eco-system is a similar fashion.
Whether it is whales, fish, birds, bats or other animals, or their effects on trees, crops or people, wind turbines are problematic and do not have the positive outcome that their backers claim, socially or economically. It is a toss up as to which is worse, solar or wind industrial developments, but either is surely worse than gas turbine or even a modern reactor w.r.t. providing essential electricity to the people.
Good news out of France:
France’s Council of State decries industrial wind turbines, calling them illegal, requiring full environmental assessments
The single most stupid thing about “offshore wind” in North America is we own the mountain ranges, we don’t need to put shit in the ocean for lack of land. Mountains are generally rock up at the tops, they’re solid, they’re not moving, there’s not much birds or bats over mountain tops… the wind is always there and nobody lives close enough to have a legitimate complaint… and you don’t need giant monster units up there, smaller ones do fine and they can be ugly as hell. Cooling generally isn’t an issue either.