Conservative groups cleared to continue legal fight to protect whales from Biden-backed offshore wind farm

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A coalition of conservative organizations has standing to continue fighting a Biden administration wind project in Virginia, a federal judge determined. 

However, U.S. District Judge Loren L. AliKhan of the District of Columbia, a Biden appointee, denied the plaintiff's petition for a preliminary injunction to halt construction of the Coastal Virginia Offshore Wind project from going forward. 

On Thursday, the plaintiffs withdrew a petition for an expedited appeal to the D.C. Circuit Court for a narrow decision on the injunction but will continue the case to stop the construction, one attorney said. 

The plaintiffs sued the Biden administration and Dominion Energy to protect the North Atlantic right whale under the Endangered Species Act. 

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Three offshore wind turbines off the coast of Block Island, R.I., Aug. 15, 2016. (AP Photo/Michael Dwyer, File)

The plaintiffs are the Committee for a Constructive Tomorrow, the Heartland Institute and the National Legal and Policy Center. The litigation specifically names the Interior Department, the Commerce Department, the Bureau of Ocean Energy Management, the National Marine Fisheries Service and the top officials at those agencies that approved the project, as well as Dominion. 

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"We made a tactical decision that, timing-wise, it made sense to forego the appeal of Judge AliKhan's order ruling that we did not show irreparable harm, although she did rule we had standing to sue, which is a high hurdle to meet," Paul Kamenar, counsel for the National Legal and Policy Center, told Fox News Digital.

If the plaintiffs had won on appeal, it would have only been remanded to the judge and taken more time. That would have prolonged arguing the merits of the case, he said. 

"By that time, our brief on those merits are already scheduled to be filed in early October, and Dominion has to stop all work anyway from December to next May 2025," he said. "So, by then, we would have argued our main case and hopefully have a final ruling before next May requiring Dominion to cease any further work for the 2025 season until they do a cumulative impact study."

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The litigation aims to force Dominion to halt construction on the project until the Bureau of Ocean Energy Management develops a new "biological opinion" that covers verifiable protection against potential harm to the North Atlantic right whale. The lawsuit claims the agencies approved Dominion Energy’s offshore wind project by ignoring procedural errors that would subject the endangered whales to grave harm.

Spokespersons for the federal agencies declined to comment on pending litigation. 

A humpback whale jumps off the coast of Les Saintes, a part of the French West Indies island of Guadeloupe, May 13, 2022.  (Loic Venance/AFP via Getty Images)

However, Dominion did not hesitate to be dismissive of the lawsuit. 

"We agree with the District Court’s decision, and we stand behind the agency’s approval of the project. The issues raised in this case have no merit," Dominion spokesperson Jeremy Slayton told Fox News Digital. "The National Marine Fisheries Service performed a thorough environmental review, and the environmental safeguards we have in place for Coastal Virginia Offshore Wind (CVOW) are protective of the environment and marine wildlife."

The judge’s opinion didn’t determine the merits of the larger case about whether the project violates the Endangered Species Act. The ruling dealt with the narrow issue of whether construction would cause irreparable harm to the plaintiffs, which also include residents in the area.

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The judge accepted the argument from Dominion that the North Atlantic right whales are unlikely to be in the vicinity, but if the whales are seen, construction would be halted.

If completed, the project would be the largest of its kind, the plaintiffs contend, consisting of 176 wind turbines, each taller than the Washington Monument just over two dozen miles off the coast of Virginia Beach.