A coalition of public interest groups has filed a lawsuit against Biden administration officials and agencies, asking for preliminary injunction to stop the construction of a wind turbine project off the shore of Virginia. The suit was filed in the name of saving the whales.
The lawsuit claims the Virginia wind farm would expose the already critically endangered North Atlantic right whale to further harm, and that the Bureau of Ocean Energy Management’s biological opinion in September 2023 wrongly failed to evaluate the harm.
The lawsuit was filed by The Heartland Institute, the Committee for a Constructive Tomorrow (CFACT), and the National Legal and Policy Center. They’re asking for an injunction to stop work from beginning on the wind farm until further environmental studies are performed.
The Heartland Institute calls itself an “action tank” and, among other topics, has published books and articles by people who reject the scientific consensus on climate change.
However, Managing Editor Sterling Burnett says they are not climate change deniers. "We're often accused of that,” he said, “But we don't dispute that and so it's hard to see how us fighting for whales is a cover for fighting the belief in climate change.”
Burnett says the lawsuit asks for the project to be stopped until an environmental impact study is done not just for the Virginia wind farm but the cumulative impact of all of those along the East Coast.
"The Biden administration wants 30,000 megawatts of wind built. It has dozens of projects approved, fast tracked in very short fashion,” he said. “But it treats each project in isolation with regard to the safety of the whale. As opposed to, well, ‘What's the cumulative impact of all these projects on the whale?’”
Dominion Energy plans to start construction on the offshore wind farm on May 1. Beyond the points laid out in the lawsuit, Burnett says it could be a lose-lose for power customers in Virginia – particularly if there are cost overruns.
"Dominion, unlike many of the other projects, is financing this all on its own. It doesn't have to get help. Because they work with Virginia, and Virginia cut it a sweetheart deal.” He said, “No matter what the rate is, they get to pass it along to ratepayers, no matter how much the cost increase they get to pass along to ratepayers.”
The second organization involved, Committee for a Constructive Tomorrow advocates for an economically libertarian approach to environmental action and has also been referred to as a group of climate change deniers.
CFACT co-founder and president Craig Rucker says that’s not exactly true, but they do believe it’s overhyped.
"Really, we don't think that the hype about climate is proven to be true,” he said.
Related: Administration sets plan for 7 offshore wind farms by 2025
At the heart of the lawsuit, he says, is the fact that while the federal government has done individual studies at each proposed wind farm site, they haven’t done an overall study like they would with other such projects.
Rucker said, "The way that you would do it for, let's say an offshore oil rig or anything else, they would never just put these things up and rush to speed them up without doing the proper thing as to, ‘What would be the cumulative impact of all the oil rigs that the whale species would have to go through?’”
The National Legal and Policy Center promotes ethics in government and calls for a smaller government. They don’t often dip into environmental action, but are the third member of the coalition that filed the suit.
As few as 360 North Atlantic right whales remain alive in the wild. However, the National Oceanic and Atmospheric Administration’s data on North Atlantic right whale deaths show no indication that offshore wind is driving up mortality.
Between 2017 and 2024, NOAA numbers show there were 39 total right whale deaths; 14 were killed when they were hit by boats, 13 died from unknown causes and nine from getting tangled in fishing gear.
Related: NOAA: stricter boat speed regulations being considered to save endangered whales
"There is obviously a little bit more vessel traffic going out to these areas, transporting all the materials and things,” said North Carolina Museum of Natural Sciences Mammalogy Research Curator Dr. Michael Cove, who does have some concerns about the increase in boat traffic during the construction phase of the project, as well as the use of seismic air gun technology to map the ocean floor for the installation.
However, if the project is timed right and avoids the months the right whales are offshore of Virginia, he said that impact would be minimal.
"In theory, a lot of these cetaceans, and especially the North Atlantic right whales, are migratory,” Cove said, “So, if we know when they're passing through, we could minimize those impacts. And then once the infrastructure is in there, it doesn't appear that there would be any sort of negative impacts beyond that.”
Related: Public Comments Sought On North Carolina’s First Proposed Offshore Wind Project
And once built, Cove said the wind farms could have a beneficial impact, and reduce the single greatest threat to the endangered species.
"The wind turbines themselves don't go cut into the water or anything like that, and, if anything, there's going to be a lot less fast traffic of vessels going through there that may sort of indirectly benefit these whales ... the most upsetting and detrimental impacts to them right now our vessel strikes from large commercial boats,” he said.
And while various organizations often use “charismatic species” – endangered or threatened populations like the North American right whale, or the red wolf or the polar bear -- to draw attention to their causes, Cove said, if anything, the wind farms themselves are likely a greater danger to sea birds than whales.
"There's a spatial component to avoid any incidental take of seabirds. And then there's a temporal component of deciding when best to do the actual infrastructure for the other marine mammals,” he said.
The Virginia Offshore Wind project consists of 176 wind turbines to be constructed in the open ocean 25 miles off the coast of Virginia Beach.
