Posted on June 3, 2024
A federal judge has rejected a legal attempt to put a pause on Dominion Energy’s offshore wind project that many see as a critical tool to address the root causes of climate change and provide clean energy to Virginia.
Judge Loren L. AliKhan, for the U.S. District Court for the District of Columbia, on Friday denied the request for a preliminary injunction from plaintiffs in the lawsuit, which included two conservative groups — The Heartland Institute and the National Legal and Policy Center (NLPC) — and the fossil fuel-funded Committee for a Constructive Tomorrow (CFACT).
The three plaintiffs sought the delay because of potential harm to the North Atlantic Right Whale, an endangered species that migrates through the 113,000-acre project area located about 29 miles off the coast of Virginia Beach. The project is expected to be finished in 2026.
The groups did not demonstrate “that they will suffer irreparable harm in the absence of a preliminary injunction or administrative stay,” wrote AliKhan in her order. “That is a sufficient basis to deny their motion.”
Dominion, which opposed the delay request alongside the federal government that gave approvals for the project, said the utility, “agree[s] with the Court’s decision.”
“The National Marine Fisheries Service (NMFS) performed a thorough environmental review and the environmental protections we have in place for Coastal Virginia Offshore Wind (CVOW) are protective of the environment and marine wildlife,” utility spokesperson Jeremy Slayton said in a statement.
Craig Rucker, president of CFACT, said there were “inconsistencies” with the judges’ decision, considering the National Oceanic and Atmospheric Administration made a recent request for vessels near Virginia Beach to voluntarily slow down out of concern for the North Atlantic Right Whale.
The groups suing said the National Marine Fisheries Service opinion didn’t take into account cumulative effects of other projects proposed along the East Coast that could cause the biological opinion to reach a different conclusion.
The NMFS had issued a biological opinion in September that stated the piledriving of the 176 wind turbine’s foundations had the “potential to disturb,” but not a “potential to injure” the species, and put construction restrictions in place to minimize disturbances.
Restrictions on the project include: limiting construction from May through October, when the Right Whales are unlikely to be in the area; pausing construction when a whale is spotted; and establishing a comprehensive “Vessel Strike Avoidance Plan” and mitigation plans.
“Plaintiffs have not explained why these measures would not be sufficient to protect the Right Whale during the pendency of this litigation,” AliKhan wrote. In order for a pause to be issued, AliKhan explained in her order, the plaintiffs must show that the pause is needed to prevent “irreparable harm,” among other considerations.
AliKhan did say the plaintiffs have standing to continue the suit, by Rucker demonstrating that he has a trip planned for December to observe whales. Not considering cumulative effects could have resulted in a deficient opinion, leading to a hindrance in his ability to observe the Right Whale.
But, the biological opinion from NMFS states, “no mortality or permanent injury (auditory or other) is expected,” and the plaintiffs were unable to seriously contest that conclusion, beyond Rucker stating the project, with others, “may” cause the species to disappear.
“Such equivocal statements fall short of showing an injury that is ‘certain’ or ‘actual’ for purposes of a preliminary injunction or stay,” AliKhan wrote.
The judge also noted that the plaintiffs’ timing in seeking the injunction on the eve of in-water construction beginning was “unwarranted” because of previous case law that states a delay “implies a lack of urgency and irreparable harm.”
The broader case over concerns about North Atlantic Right Whale harm, which research says isn’t coming from offshore wind development, is still alive, with the judge reviewing the initial lawsuit to determine if there was a procedural issue with the biological opinion that didn’t evaluate the effect of all the other projects, Rucker said in an interview with the Mercury.
A final decision could come later this year, but the plaintiffs are considering whether or not to request an expedited appeal to the judge’s latest order preventing a project delay.
“Dominion has its priorities which is to make money,” Rucker said, evidenced by the utility beginning construction before the judge issued a final decision on whether a delay was needed or not to protect the whales.
Amid the legal troubles of a potential injunction, Dominion installed the first monopile foundation on May 22 with DEME’s heavy lift vessel called Orion. The utility wasn’t able to do any work prior to May, because of protections for the Right Whale, and had to wait for Orion to arrive as well as safe weather for work.
Dominion Chair, President and CEO Bob Blue said the day the first monopile was installed was “monumental’ for the $9.8 billion project that is “on budget and on schedule to provide our customers with reliable, affordable and increasingly clean energy.”
Blue added that the company is taking “extensive precautions” to make sure the project protects the environment and the whales.
The monopiles are stored at the Portsmouth Marine Terminal as installation continues through the fall of 2024, before resuming May of 2025, consistent with the prohibition between Nov. 1 and April 30.
Dominion, which said over 800 Virginia workers have been involved with the project and over 1,000 will be engaged for the ongoing operation over its 35-year lifespan, is using a bubble curtain to reduce noise impacts.
