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Lawsuit to stop Virginia Beach offshore wind farm claims project is a danger to whales

Eliza Noe, The Virginian-Pilot

Several groups have filed a lawsuit against federal entities to overturn the approval of a massive wind turbine project off the shore of Virginia Beach, claiming it is a hazard for endangered North Atlantic right whales.

The lawsuit filed by The Heartland Institute, the Committee for a Constructive Tomorrow and the National Legal and Policy Center names the United States Department of Interior, the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Services, among others. It claims the federal government is on an “aggressive” campaign of developing offshore wind off the Atlantic coast, and the locations of the projects being in right whale habitat poses a major risk for injury or death of the animals.

The coalition said in a statement that the lawsuit is to stop Dominion Energy’s plans to start construction on May 1 in order to protect the North Atlantic right whales. North Atlantic right whale populations have dwindled due to an “unusual mortality event,” according to scientists. The National Oceanic and Atmospheric Administration and other groups attribute many of the deaths to vessel strikes and entanglement.

“In issuing its ‘biological opinion’ in September, (National Marine Fisheries Services) only examined the impact that each of these projects, individually and in isolation, would have on the North Atlantic right whale,” the coalition said in a statement. “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.”

In October, a large-scale, 176-turbine wind farm received final federal approval to be built 27 miles off the coast of Virginia Beach, and it is anticipated to generate enough energy to power up to 660,000 homes, according to Dominion Energy. Construction is slated to start this year with a completion date of the end of 2026. Onshore work for transmission of the energy has already begun.

According to the National Oceanic and Atmospheric Administration, there is no scientific evidence supporting a link between large whale deaths and offshore wind development.

“Our climate is changing, and one of those key changes is the warming of our oceans. In response, many marine species are adapting by moving into new areas where conditions are now more favorable,” the administration posted in an FAQ page about offshore wind and whale deaths.

“Changing distributions of prey impact larger marine species that depend on them, and result in changing distribution of whales and other marine life. This can lead to increased interactions with humans as some whales move closer to near shore habitats.”

NOAA reports that during necropsies (or animal autopsies), scientists identify vessel strikes and entanglement deaths with visible injuries, such as cuts from propellers, bruising and broken bones, but they are unable to determine what kind of vessel struck the whale. The administration reported strandings and inconclusive necropsies have occurred long before offshore wind would have been a factor, so correlating the two now “is not based in science.”

“Acoustic trauma, which could result from close exposure to loud human-produced sounds, is very challenging to assess, particularly with any amount of decomposition,” NOAA reports. “Scientists look for bruising or trauma to the ear and other organs, but linking it to a particular sound source is difficult, as certain parts of the ear decompose very quickly (within hours), even more so than some of the other parts of the animal. If the whale is already in moderate to advanced decomposition, then microscopic changes in the ears are generally no longer detectable.”

The lawsuit, filed in Washington, claims that the BOEM’s biological opinion issued in September 2023 “wrongly determined the project would not produce any irreparable harm” for the North Atlantic right whale during the construction, operation or decommissioning phase of the project.

“In short, the same cohort of migratory (North Atlantic right whales), numbering no more than 340 individual whales, will have to run the gauntlet of impacts, impediments and physical threats posed by the many (offshore wind) projects approved and/or planned for the Atlantic seaboard,” the coalition’s lawsuit says.