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Expanding wind industry hits bats, turbulence and lawsuits  

Climatewire: The prospect of thousands of endangered bats flying to their deaths in West Virginia wind turbines soon could get consideration in federal court because of Judy Rodd.

The 63-year-old is the president of Friends of Blackwater Canyon, which recently joined 10 other groups in filing a “notice of intent” with the Fish and Wildlife Service to sue a wind company on Endangered Species Act grounds. The organizations warned of potential turbine kills of the Indiana bat, Virginia big-eared bat and Virginia northern flying squirrel.

“Yes, we’re concerned about climate change,” said Rodd in a phone interview. “But that doesn’t mean they can’t build the turbines somewhere else and let the bats live.”

As the wind industry experiences exponential growth, developers increasingly are facing legal challenges on everything from local noise statutes to state tax regulations to the federal Coastal Zone Management Act, many analysts say. Wind supporters claim that a small group of plaintiffs are misusing the legal system, while those fighting projects say they genuinely are protecting the public and landscape.

So far, the wind companies seem to be prevailing against lawsuits and legal complaints, although many projects have been delayed.

“We’ve seen this before with oil and gas and other industries,” said wind developer spokesman Frank Maisano. “It’s a delaying tactic to undercut financing.”

The backers of the West Virginia project in Grant County, NedPower Mount Storm LLC and its corporate owners, Dominion Resources and Shell WindEnergy, declined to comment about a pending legal case, but company spokesman Tim O’Leary said “there is another side to the story.”

Many opponents of wind farms simply do not like the look of turbines, said Jeremy Fielding, an attorney at Lynn Tillotson Pinker & Cox LLP who won a 2006 case in Texas against people alleging the Horse Hollow wind energy farm damaged their properties.

“At the end of the day, it’s about aesthetics, but opponents know they can’t prevail on those claims,” Fielding said. “So they’ll come up with anything, whether it be noise or wildlife.”

Some opponents simply do not want to hunt near a turbine, Fielding added.

Is it about aesthetics?

Rodd denies that aesthetics are her motivation, citing a study led by a University of Maryland doctoral student reporting that another West Virginia wind project with 44 turbines had killed as many as 4,000 bats in 2004.

None of the animals found at the time were endangered species, but Rodd pointed to a letter accompanying the “notice of intent” from Thomas Kunz, a biologist and director of Boston University’s Center for Ecology and Conservation Biology, saying the NedPower project would “quite likely” harm individual endangered bats. A letter sent to FWS from the groups also expresses concerns about potential harm to migrating birds and bald eagles.

The 60-day notice ends in July, and an official lawsuit will be filed then if NedPower has not modified its plans, Rodd said, adding she has not heard yet from the company or FWS. The developer has partially completed the wind farm, which could include more than 100 turbines eventually.

Meanwhile, a group of homeowners recently filed a separate lawsuit against the same project, alleging they would be negatively affected by noise, declining property values, light “flickering” from turbines and ice thrown from the blades. The case was thrown out initially by a local judge, but was put back into play by the West Virginia Supreme Court.

“My wife and I are a little shaken to drive by the turbines,” said Bruce Halgren, a 64-year-old retiree who is party to the lawsuit and said he was bothered by an incident when one of the turbines caught on fire.

Such fires are “rare occurrences” with the nation’s more than 25,000 operating wind turbines, and the industry is working on safety and operational standards to continue to improve performance, said Christine Real de Azua, assistant director of communications at the American Wind Energy Association (AWEA).

These are not the only lawsuits causing headaches for some in the wind industry.

Perhaps the most notorious wind fight has been over the Cape Wind project in Nantucket Sound, which members of the Kennedy family have opposed, but mentions of lesser-known cases dot anti-wind Web sites.

Or is it about protecting bats, fish, golden eagles and migratory birds?

Another potential Endangered Species Act lawsuit appeared in Pennsylvania in April, when a chapter of Trout Unlimited joined two groups in claiming that a proposed Gamesa Energy wind project threatened the Indiana bat as well as fish and golden eagle habitat. In June, a judge delayed action on a Texas lawsuit filed under the Coastal Zone Management Act after opponents charged a wind farm would harm migrating birds.

Back in Texas, some of the plaintiffs who lost a lawsuit to Fielding are back in court, claiming that wind farms benefited from illegal tax abatements. In Prattsburg, N.Y., school districts recently filed a legal complaint over an eminent domain proposal to seize part of a roadway for a wind-related underground cable.

And in Virginia, Highland New Wind Development LLC deflected five procedural challenges over wind permits after spending “several years and several million dollars,” according to company partner Tal McBride.

Much of the activity derives from the fact that the industry has grown faster than the laws governing it, some experts say. The Minerals Management Service, for example, has yet to issue complete regulations on the development of offshore wind.

The American Wind Energy Association does not keep official statistics on lawsuits, but agrees there has been more legal activity in the eastern United States in particular. In that region, it is more difficult to find plots of land away from populated areas, according to Laurie Jodziewicz, AWEA’s manager of siting policy.

Considering the wind industry’s 45 percent growth last year, some opposition is inevitable, she said.

The federal government and AWEA are taking a proactive role by conducting research on wildlife impacts under the Bats and Wind Energy Cooperative, Jodziewicz said. Similarly, a wind turbines advisory committee in the Interior Department began meeting this year to potentially develop national guidelines guiding states on wildlife concerns, she said.

“It’s important to remember that thousands of people live near turbines without incident,” she said. “Consistently, we see overwhelming support for wind projects in general.”

The industry also points to studies showing minimal turbine impacts on wildlife. At AWEA’s conference in Houston this month, a representative from Florida-based Pandion Systems discussed recent research conducted for New York officials showing that wind and nuclear power plants had the lowest impact on wildlife of all major U.S. electricity sources.

What to do ‘when Don Quixote attacks’

Still, some companies are trying to avert lawsuits by doing more community outreach before building a project. In Houston, Fielding gave a presentation on the topic titled “When Don Quixote Attacks.”

A public relations strategy is crucial for a developer’s success, he said, telling hundreds of conference attendees to build support before a wind farm’s construction by conducting town hall meetings, working with schools, establishing a complaint hotline and burying power lines so they are not eyesores.

He emphasized that a loss in the Texas Horse Hollow case would have led to “blood in the water” and a wind lawsuit frenzy. A small but increasingly sophisticated group of people are sharing legal advice on the Internet and creating nearly identical lawsuits, he said.

Web sites of groups such as National Wind Watch and We Oppose Windfarms provide information on past legal cases or have “legal documents” sections.

In preparing her case, Rodd said she spoke to attorneys who had tried cases in Pennsylvania and Texas and received assistance from advocates like Dan Boone, a former federal wildlife biologist who has been speaking out against wind projects for years at events and through the Web site Virginia Wind.

Boone, who said he is involved in a pending wind lawsuit against a state public service commission, denied that there is an “orchestrated effort to coordinate lawsuits.” Communication about legal strategy was only fair, he said, considering that industry members do the same thing.

“This is David versus Goliath here,” said Boone, echoing a biblical reference also used by Rodd.

By Christa Marshall

EarthNews

12 June 2008

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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