Obvious Violation Of Federal Law’: Forthcoming Litigation Could Gum Up America’s Largest-Ever Offshore Wind Farm

• Legal proceedings against the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Service (NMFS) could threaten to disrupt the timelines for the construction of the largest offshore wind farm in U.S. waters to date, Dominion Energy’s Coastal Virginia Offshore Wind (CVOW) project.
• The Committee for a Constructive Tomorrow (CFACT) and The Heartland Institute requested that BOEM and the NMFS begin to revise an allegedly inadequate environmental review and associated North Atlantic Right Whale harassment authorizations within the next 60 days, or the organizations will go to court to challenge the agencies’ actions, an outcome which could possibly disrupt CVOW’s timeline.
• “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,” Craig Rucker, CFACT’s president, said of his organization’s filing and its implications.

Pending legal challenges against the Biden administration could disrupt the timeline for construction of a Virginia offshore wind farm poised to be the largest in the U.S.

The Heartland Institute and the Committee for a Constructive Tomorrow (CFACT) filed a 60 day notice of intent to sue the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Service (NMFS), a subagency of the National Oceanic and Atmospheric Administration (NOAA), on Monday, citing an allegedly deficient biological review underlying the agencies’ authorizations for construction teams to legally harass a number critically-endangered North Atlantic Right Whales. The two groups request that the agencies rescind the allegedly deficient review, known as a “biological opinion,” within 60 days and issue a revised number of harassment authorizations.

If the agencies choose to disregard the request and do not rework the number of authorized whale disturbances to align with a new assessment, the organizations will take to the courts to challenge the biological opinion, according to the notice’s text. The notice and the possibility of expensive, time-consuming litigation adds to the risks that Dominion Energy’s Coastal Virginia Offshore Wind (CVOW) project faces, according to CFACT.

“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. 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,” Craig Rucker, CFACT’s president, said of his organization’s filing and its implications. “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.”

Marine Conservation Orgs Took Funds From Offshore Wind Backers, Including One Potentially Linked To Whale Deaths: REPORT https://t.co/H1WfxQExOn

— Daily Caller (@DailyCaller) March 16, 2023

The notice asserts that the CVOW project’s biological opinion, issued by NMFS and adopted by BOEM, runs afoul of the Endangered Species Act primarily because the assessment does not adequately consider the cumulative impacts that other East Coast offshore wind projects will have on migrating North Atlantic Right Whales that travel near the other developments in addition to CVOW, according to its text.

The Biden administration announced that it had greenlit CVOW development on Oct. 31, setting the project on course to become the largest offshore wind farm in U.S. waters. The administration’s approval followed months of speculation that the offshore wind industry is driving a massive spike in North Atlantic Right Whale deaths along the East Coast.

A considerable uptick in baleen whale deaths has coincided with the 2016 beginning of East Coast developments, a timeline which generally aligns with NOAA’s declarations of “unusual mortality events” for North Atlantic Rightand Humpback Whales in 2017 and 2016, respectively, according to its website.

While critics of offshore wind have suggested that offshore wind-related sonar activity could be disorienting the whales and their sensitive hearing, which in turn makes them far more likely to transit dangerous areas or struggle to find food in ways they otherwise would not, government agencies and several major eco-activism organizations maintain that there is no available science demonstrating that there is a link between offshore wind and whale mortality. The government’s current position is that climate change and vessel strikes are primarily responsible for the increase in mortalities rather than ocean industrialization.

Offshore wind is a key aspect of the Biden administration’s overall green energy agenda, which aims to have the U.S. power sector reach net-zero carbon dioxide emissions by 2035 and net-zero for the entire U.S. economy by 2050. The administration is striving to have offshore wind generate enough power to satisfy the demand of 10 million American homes by 2030, but concerns over the industry’s ecological impact and its substantial economic struggles have put that target in jeopardy.

Representatives for BOEM and NMFS declined to comment, stating that they are unable to comment on matters of litigation. Dominion Energy and the White House did not respond immediately to requests for comment.

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