November 28, 2022
Bureau of Ocean Energy Management
Docket ID: Boem-2022-0066-0003
BOEM and NOAA fisheries North Atlantic right whale and offshore wind strategy
The Committee for a Constructive Tomorrow (CFACT) submits the following comments with respect to “BOEM and NOAA Fisheries: North Atlantic Right Whale and Offshore Wind Strategy – October 2022.”
CFACT is a 501(c)(3) non-profit organization which seeks common sense, market-driven solutions to environmental problems.
On Sept 29, 2022, CFACT, along with the Heartland Institute and the American Coalition for Ocean Protection, announced that they had retained the law firm of Gatzke, Dillon and Ballance to provide advice and counsel with respect to the Draft Environmental Impact Statement (EIS) for the Virginia Offshore Wind Project (Virginia Wind), managed and constructed by Dominion Energy. BOEM projected the “target date” for the Draft EIS to be August 2022.
On Oct 21, 2022, with no advance notice, BOEM and NOAA Fisheries published a document called the “Draft North Atlantic Right Whale and Offshore Wind Strategy” (the Strategy) which would “focus and integrate past, present and future efforts related to the North Atlantic Right Whale (NARW).” The announcement further advised that BOEM and NOAA would be partnering with an organization called the Regional Science Collaborative for Offshore Wind (RWSC), a group which apparently consists of a loose amalgamation of US Atlantic offshore lease interests, including BOEM, NOAA, the US Fish and Wildlife Service (USFS), offshore wind developers, state agencies, and environmental groups. The RWSC, not BOEM, is to take the lead role for “development of the best plan forward for NARW research.”
The purpose of the Strategy is to provide a means for simultaneously fulfilling the President’s Executive Order 14008, which calls for the massive wind industrialization of the federal offshore waters of the US East Coast, while also “protecting and promoting the recovery of the NARW.”
As discussed below, this is a fool’s errand, destined to fail from the start.
Amid this mix of organizations, one document issued prior to, yet strangely not mentioned by, the Strategy – and one that is essential for an understanding of the BOEM/NOAA approach to NARW conservation – is the Potential Biological Removal (PBR) ruling issued by the National Marine Fisheries Service (NMFS) in 2021. The PBR for any species is defined as “the maximum number of individuals, not including natural mortalities, that may be removed from a marine mammal stock while allowing the stock to reach or maintain its optimum sustainable population.” NMFS had determined the PBR for the Right Whale to be 0.7. According to NMFS’ own definition, “this means that for the species to recover, the population cannot sustain, over the course of a year, the death or injury of a single individual due to human causes” (emphasis added).
One clear takeaway from the publication of the Strategy is that the timetable for issuance of the Draft EIS with respect to Virginia Wind has been dramatically altered. The timetable for issuance of the Draft EIS is now tied to issuance by the RWSC of the “Science Plan”, which will not be finalized until April – June 2023. It is not clear if the Science Plan will contain actual data regarding NARW location and mortality; information which will be essential for the issuance of the EIS, or simply a plan which describes how such data will be collected in the future. Even the funding sources for the Science Plan are left in doubt. In short, any future Draft EIS must await the completion of the Plan, because the ESA requires that the information contained in it must be based on the “best scientific and commercial data available.”
Another undeniable conclusion arising from the Strategy framework is that BOEM does not know exactly how many individual NARW exist at the present time, where the individual whales are located in real time, nor the exact migration path of any individual whale. The Strategy does not purport to determine, nor does it even suggest the possibility, that knowledge of the exact location of any single member of the species may be determined.
When the PBR (which prohibits the human killing of a single whale) is combined with the fact that BOEM has no knowledge of the number, location, or travel path of any individual whale, the entire Strategy is doomed to failure. No amount of “mitigation,” “minimization,” “reduction,” or “observation” can succeed in complying with a PBR where zero tolerance is the standard. Indeed, this issue has been adjudicated recently by the U.S. District Court for the District of Columbia. In Maine Lobstermen’s Assoc. v. NMFS, Judge Boasberg ruled that where the PBR is effectively zero, any ocean activity authorized by BOEM which includes the continuation of human caused NARW mortality is ipso factoarbitrary and capricious.
The Strategy proposes to establish a set of rules which seeks to minimize and reduce human caused mortality but does not eliminate it. Elimination can’t be accomplished in an ocean environment which is industrialized with 3,411 turbines and 9,874 miles of submarine cable. Executive Order 14008 cannot supersede the environmental protection provided by federal law as set forth in the ESA, MMPA, and APA. Even if NOAA Fisheries issued a “no jeopardy” opinion for Virginia Wind – which would be contrary to all evidence and common sense – any Incidental Take Statement resulting therefrom would have to be zero, thus rendering the project impossible to execute.
In summary, BOEM cannot research, collaborate, minimize, mitigate, monitor, avoid, evaluate, or otherwise strategize its way out of a zero take marine environment for the NARW. Therefore, the Strategy is a huge waste of time and resources and doomed to failure.
Under these circumstances, litigation appears to be inevitable.
Collister “Terry” Johnson, Jr.
Member, CFACT Board of Advisors