Endangered Species Law & Policy

On November 13, two advocacy organizations submitted a notice of intent to sue the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The notice letter alleges that the September 18, 2023 Biological Opinion (BiOp) issued by NMFS for the Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) because it fails to adequately analyze and mitigate the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis).

The notice letter alleges several deficiencies in the BiOp, including:

• The BiOp only analyzes impacts to the right whale from the CVOW project and the CVOW project area, and does not assess cumulative impacts to the right whale from all offshore wind development planned along the East Coast and from additional incidental harassment authorizations issued to other offshore wind projects;
• The BiOp did not wait for the results of ongoing studies of baleen whale hearing capabilities scheduled to be completed in 2025, and therefore was not based on the “best scientific information available”;
• The proposed mitigation measures in the BiOp will not adequately protect the right whale from vessel strikes associated with the CVOW project, and noise from the project will force right whales into areas with higher shipping activity;
• The BiOp does not address the possible effects of CVOW and other offshore wind projects on the distribution of the right whale’s prey; and
• The BiOp does not adequately ensure that mitigation measures will prevent “Level A” harassment of right whales (defined in the Marine Mammal Protection Act (MMPA) as harassment that has the potential to injure a marine mammal or marine mammal stock in the wild) during pile driving.

The November 13 notice letter asks NMFS and BOEM to withdraw the current BiOp and prepare a new one that corrects these alleged deficiencies. It also suggests that a valid BiOp for the CVOW project, and other offshore wind projects, cannot be validly issued until BOEM and NMFS complete a separate analysis of the cumulative impacts on the right whale from all proposed offshore wind projects along the East Coast.

Under section 11 of the ESA, the two organizations—the Committee for a Constructive Tomorrow (CFACT) and the Heartland Institute—must wait 60 days after submitting the letter before filing suit. CFACT and the Heartland Institute, along with the American Coalition for Ocean Protection, also submitted comments on the draft Environmental Impact Statement (EIS) for CVOW, raising similar issues to those raised in the November 13 notice letter. This suggests that any lawsuit filed by these entities will also challenge the Final Environmental Impact Statement for CVOW, which BOEM completed on September 29, 2023.

A federal court in Massachusetts recently rejected similar challenges to the federal approvals for the Vineyard Wind project under the ESA, MMPA, and National Environmental Policy Act (NEPA) in the case of Seafreeze Shoreside v. Department of Interior, finding that the plaintiff fishing industry associations lacked standing to assert their claims because they had not demonstrated an injury connected to the project’s asserted impacts on the right whale and were not within the “zone of interests” protected by NEPA and the MMPA. In an earlier opinion in another case (Nantucket Residents Against Turbines v. Department of Interior), litigated by the same attorneys who signed the November 13 notice letter, the same Massachusetts federal court rejected ESA and NEPA challenges to the EIS and BiOp for Vineyard Wind. The plaintiffs in Nantucket Residents Against Turbines based their ESA and NEPA claims on similar allegations about the wind project’s impact to the right whale as those made in the November 13 notice letter.

Both cases are now under appeal. If the decisions in Seafreeze Shoreside and Nantucket Residents Against Turbines are upheld, any challenge to the CVOW project asserting similar allegations of harm to the right whale may find those cases difficult precedent to overcome.