Federal Court Rules Massive Wind Energy Project in Violation of Endangered Species Act
Wednesday, December 9, 2009
Judge Prevents Project That
Will Kill Hundreds Of Thousands Of
Washington, D.C. – Federal
district court Judge Roger Titus of the U.S.
District Court for the District of Maryland has
issued a comprehensive ruling that an
industrial wind energy facility in Greenbrier
County, West Virginia will kill and injure
endangered Indiana bats, in violation of the
Endangered Species Act (ESA). The court
concluded that “the development of wind energy
can and should be encouraged, but wind turbines
must be good neighbors.” This is the first
federal court ruling in the country finding a
wind power project in violation of federal
environmental law, and it highlights the
critical importance of balancing the creation
of renewable energy and protection of
endangered wildlife species under the ESA. The court recognized that “the two vital
federal policies at issue in this case are not
necessarily in conflict” because defendants
Invenergy and Beech Ridge Energy could have
sought a permit under the ESA which would
“allow their project to proceed in harmony with
the goal of avoidance of harm to endangered
species.” The ESA provides for the issuance of
permits that authorize projects in endangered
species habitat, but only when the United
States Fish and Wildlife Service attaches
strict and enforceable conditions designed to
minimize the impact on imperiled species. In finding a violation of the ESA, the court
held, based on extensive expert testimony and
other evidence, “that, like death and taxes,
there is a virtual certainty that Indiana bats
will be harmed, wounded, or killed imminently
by the Beech Ridge Project in violation of …
the ESA, during the spring, summer, and fall.”
Accordingly, the court held “that the only
avenue available to Defendants to resolve the
self-imposed plight in which they now find
themselves is to do belatedly that which they
should have done long ago: apply for a permit”
under the ESA. In holding that the project is “certain to
imminently harm, kill, or wound Indiana bats,”
the court relied heavily on testimony by
leading bat biologists Dr. Thomas Kunz of
Boston University, Dr. Michael Gannon of Penn
State, and Dr. Lynn Robbins of Missouri State
University. Dr. Kunz – whom the court has
described as the “leading expert in the field
of bat ecology in the United States” –
testified that the project will not only kill
endangered Indiana bats, but may kill more than
a quarter of a million bats overall, including
species already being decimated by threats such
as the devastating disease known as white-nose
syndrome. Plaintiffs in the case – the Animal Welfare
Institute, Mountain Communities for Responsible
Energy, and caving enthusiast Dave Cowan –
applauded the court’s ruling. “As this nation embraces renewable energy
which all of the plaintiffs support, it is
critical that such projects be undertaken
consistent with federal law to ensure that our
rush to develop a green energy future doesn’t
jeopardize imperiled species,” said D.J.
Schubert, a wildlife biologist with the Animal
Welfare Institute. “In this decision, the court
sends an unequivocal message that the ‘green
energy’ label does not exempt wind power from
compliance with federal laws protecting
wildlife and the environment,” added William
Eubanks, an attorney with Meyer, Glitzenstein
& Crystal which represented plaintiffs in
this case. “Indeed, other wind power companies
are complying with the ESA permitting process,
the Congressionally mandated vehicle for
minimizing harm to listed species.” The court enjoined the construction of any
additional wind turbines and prohibited the
operation of all existing turbines between
April 1 and November 15 until an Incidental
Take Permit is obtained. Operating the existing
turbines between November 16 and March 31 is
not likely to impact Indiana bats since they
hibernate during the winter months. Per
an earlier agreement between the parties and
the court, 40 of the 122 planned wind turbines
have been erected to date, and those are
generally farthest from known winter
populations of Indiana bats. “We do not oppose responsible development of
renewable energy projects be they wind farms,
solar farms, or tidal energy projects but there
must be independent federal regulation of these
project to avoid unintentional consequences to
protected species,” said John Stroud,
spokesperson for Mountain Communities for
Responsible Energy. “This court has made
clear to Beech Ridge and its parent company,
Invenergy, that the ESA has teeth, that the
Indiana bat will be harmed by this project, and
that these companies don’t get a free pass to
violate the ESA,” said Dave Cowan, an avid
spelunker who has explored many of West
Virginia’s caves. * * *
* * Contacts:
The Animal Welfare Institute is
headquartered in Washington, D.C. and is
dedicated to alleviating suffering inflicted on
animals by humans. Mountain Communities for
Responsible Energy is based in Williamsburg,
West Virginia is dedicated to educating people
about and advocating for responsible wind
energy development in West Virginia. Plaintiffs
were represented in the case by Meyer
Glitzenstein & Crystal, a public interest
law firm in Washington, D.C. A copy of the opinion and order
issued by the court can be obtained at
www.awionline.org/beechridgebats
William
Eubanks/Eric Glitzenstein, Meyer Glitzenstein
& Crystal, (202) 588-5206
D.J. Schubert,
Animal Welfare Institute, (609)
601-2875
John Stroud, Mountain Communities
for Responsible Energy, (304) 645-7169
