Court Rules Massive Wind Energy Project in Violation of Endangered Species Act

Judge Prevents Project That Will Kill Hundreds Of Thousands
Of
Bats From Proceeding Without Federal Permit

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:
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

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 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

Animal Welfare Institute

www.awionline.org

9 December 2009

Tags: Wind power, Wind energy

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