The Heartland Institute and the Committee for a Constructive Tomorrow (CFACT) announced today that they are filing with the Bureau of Ocean Energy Management (BOEM) and the National Marine Fisheries Service (NMFS) a 60 Day Notice of Intent to Sue letter for a violation of the Endangered Species Act. The violation is contained in a defective “biological opinion,” which authorizes the construction of the Virginia Offshore Wind Project (VOW).
The 60 Day Notice is required by the Endangered Species Act (ESA) for parties who wish to commence litigation against BOEM for failure to provide adequate protection of the North Atlantic right whale and other endangered species. The North Atlantic right whale is listed as “critically endangered” by governments of both the Commonwealth of Virginia and the United States. Numerous studies by federal and environmental organizations have found that only about 350 North Atlantic right whales remain in existence.
CFACT and The Heartland Institute assert that the Biological Opinion issued by the NMFS fails to consider the cumulative impact of the entire East Coast offshore wind program ordered by the Biden administration, and ignores the “best scientific information available” about the endangered population of the North Atlantic right whale. The biological opinion found that the VOW would not cause a single death of that species of whale over its 30-year projected lifetime — although it did acknowledge the wind project could result in Level B harassment. That level could, according to NMFS, result in indirect death, requiring the need for a “take” permit, which authorizes the “harassment” and potential killing of the North Atlantic right whale.
“We need to send a message to BOEM and NMFS that there will be legal consequences if they violate legal requirements for protection of the North Atlantic Right Whale,” said H. Sterling Burnett, Ph.D., director of the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute. “The Biden administration’s plan to industrialize the ocean along the East Coast must follow the law, and we will intervene, if necessary, to make sure that the North Atlantic right whale continues to exist as a species.”
“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,” said Craig Rucker, president of CFACT. “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. 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.”
“BOEM has admitted that it produced noise control regulations for the North Atlantic right whale that were based on guesswork — not on the ‘best available science’ — as required by law,” said Collister Johnson, senior policy adviser for CFACT. “They have funded ongoing studies that will finally produce information necessary to determine the noise impacts of offshore wind factories on baleen whales, such as the North Atlantic right whale. The results will not be available until 2025, at the earliest. This is a further violation of federal law, in addition to ignoring the cumulative impacts.
As I've noted before, I'm agnostic on the question of whether the coastal wind projects are causing the apparent uptick in whale deaths along the Atlantic. I just don't think the evidence is there to conclude one way or the other. However, lots of environmental suits are filed over less evidence, and they often succeed on the "precautionary principle." There are better reasons to oppose coastal wind power, irregularity and economics being foremost among them.
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