Judge to decide whether to delay construction of Dominion’s offshore wind project

A federal judge will soon decide whether Dominion Energy obtained necessary federal approvals for its Coastal Virginia Offshore Wind project, a 176-turbine wind farm environmental groups are backing as a critical source of renewable energy needed to combat climate change.

Judge Loren L. AliKhan is expected to make a decision on a request for a preliminary injunction as part of a lawsuit against Dominion and U.S. President Joe Biden’s administration officials, who are overseeing construction of the offshore wind project. 

The $9.8 billion CVOW project is expected to be completed in 2026 with the ability to generate enough power for up to 660,000 homes.

In March, 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), filed the lawsuit alleging Dominion didn’t obtain, nor did the federal government issue, approvals for a biological opinion to address any impacts to the North Atlantic right whale, an endangered species. Several of the dead animals have washed up along the East Coast several times in recent years.

“Dominion Energy must be prevented from engaging in any offshore construction” until the National Marine Fisheries Service issues a “properly determined” biological opinion, said CFACT president Craig Rucker in a statement when the plaintiffs filed their lawsuit. 

The biological opinion is separate from the environmental impact statement, a review of alternative plans for the project that found there could be an adverse impact to the species, considering the project lies within its migration corridor. Multiple reports have found that the development of offshore wind projects are not causing the deaths of right whales. Additionally, Dominion employs whale spotters who are trained to actively monitor any interactions with the species. 

AliKhan’s forthcoming decision on whether the project will be delayed or not comes after an April 29 hearing where attorneys representing Dominion and the federal government where “vague in their answers” when AliKhan asked if approvals for the biological opinion were obtained, according to a news release from The Heartland Institute.

AliKhan then asked for Dominion and the Biden administration officials to file their opposition arguments by Monday, May 6. The plaintiffs agreed to file their response by the end of the day Thursday but are now asking for an extension to mid-day Friday because one of their attorneys is traveling. AliKhan is then expected to make her decision that day or the following week.

While not explicitly ordering a delay on beginning construction of CVOW, Rucker said the request for more information effectively does delay construction of the project because it wouldn’t make sense for Dominion to begin piledriving if there is a chance the judge could order construction to halt.

“Because she didn’t explicitly order them not to do anything they’re free to go ahead and do this,” said Rucker of Dominion’s plans to begin construction this week. “It was one of those things that was kind of implied in the hearing. ”

But Dominion called any characterization of the judge ordering a delay “false.”

“There has been no delay ordered by the court,” said Jeremy Slayton, spokesperson for Dominion, in a statement. “Our construction schedule has not been altered and stays on schedule.” 

Bob Blue, chair, president and CEO of Dominion, expressed a similar message in a recent company earnings call on Friday.

“Similar arguments to those made by the plaintiffs in this case have been rejected by courts when raised with respect to other projects, most recently by the U.S. Court of Appeals for the First Circuit just last week in a challenge brought against the permit for Vineyard Wind,” said Blue, referencing a project in Massachusetts. Blue said the lawsuit “has no merit” and expects the judge to deny the plaintiff’s delay request. 

Dominion had said it planned to begin construction “in May.” The utility couldn’t begin construction prior to May 1 because the migration season for the North Atlantic Right Whale didn’t end until that date. Slayton said its latest plan to build the project this week has been dependent on the arrival of the ship Orion, which is coming from Scotland, to do the piledriving as work on Dominion’s Charybdis vessel is completed.

This week’s weather, forecast to be stormy, could also impact whether construction begins this week. 

In their court filings Dominion and the federal government said the biological opinion approvals have been obtained. On Monday, Dominion’s attorney’s opposed any delay, citing the “many months” the plaintiffs had before seeking the preliminary injunction.

“Plaintiffs’ motion and declaration are based on speculation, and devoid of any evidence or facts” that prove the CVOW project’s construction, especially piledriving, would trigger “immediate, substantial and possibly irreversible harm” to right whales, wrote James Auslander, attorney for Dominion. 

Some environmental groups such as the Southern Environmental Law Center, which have historically been at odds with Dominion over the costs of clean energy deployment, are critical of the plaintiff’s efforts. A key negotiator in a settlement over a separate matter to allow the project to advance with construction cost overrun protections, the SELC said in a statement that the project is key to both Virginia’s clean energy future and addressing climate change. 

“We’ve seen time and time again fossil fuel funded groups that have no interest in protecting endangered whales trying to stop offshore wind development simply to push their own agendas forward,” said Grayson Holmes, a senior attorney in SELC’s Virginia office. “These groups disingenuously sought an emergency order to block construction during the window of time when most right whales have moved out of Virginia’s waters.” The CVOW project is “an example of offshore wind done right,” Holmes added. 

The Chesapeake Climate Action Network, a group that has staunchly opposed Dominion’s proposal for a natural gas plant to ensure grid reliability in the face of unprecedented development of energy-demanding data centers, also spoke up for Dominion’s wind farm.

“The Coastal Offshore Wind Project has gone through extensive environmental review from federal and state agencies and has checked every box for responsible development and wildlife management,” said Victoria Higgins, Virginia director for CCAN, in a statement.