By Avery Fellow, Courthouse News Service, www.courthousenews.com 9 December 2009
A federal judge in Maryland ordered project developers to stop building wind turbines along Appalachian ridgelines in West Virginia until they got a federal permit allowing the “incidental take” of endangered Indiana bats. “It is uncontroverted that wind turbines kill bats, and do so in large numbers,” wrote Judge Roger Titus.
The underlying case, filed last June by the Animal Welfare Institute, Mountain Communities for Responsible Energy and David Cowan, accused turbine construction companies Beech Ridge Energy and Invenergy Wind of violating the Endangered Species Act by harming endangered Indiana bats.
Judge Titus ruled that the $300 million Beech Ridge Project, which calls for construction of 122 400-ft turbines along 23 miles of ridgeline Greenbrier County, W. Va., is subject to the incidental take permit process under the Endangered Species Act.
The turbine case was the first to challenge a green-energy project on environmental grounds, putting at odds federal endangered species protection and a push by the Obama administration to develop renewable energy resources.
“The two vital federal policies at issue in this case are not necessarily in conflict,” Judge Titus wrote.
“[T]he tragedy of this case is that defendants disregarded not only repeated advice from the U.S. Fish and Wildlife Service but also failed to take advantage of a specific mechanism, the incidental take permit process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species.”
The judge said the companies’ environmental consultant repeatedly disregarded advice from the U.S. Fish and Wildlife Service and didn’t look hard enough to find Indiana bats at the project site.
Titus cited expert opinion showing that there were two bat caves within 10 miles of the project site, each housing hundreds of hibernating bats for the winter, supporting the conclusion that bats are in the area. According to one expert, caves within 150 miles of the site put bats within migratory range of the turbines, the ruling states.
The district court ruled 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 Endangered Species Act, during the spring, summer and fall.” Bats hibernate during winter.
The building process has created habitat “sinks” that attract Indiana bats, Titus noted. Additionally, acoustic studies have yielded sound data that experts identified as bat calls.
Because project developers repeatedly ignored letters from the Fish and Wildlife Service recommending that they perform better surveys, “the court has no choice but to award injunctive relief,” Titus wrote.
He ordered Beech Ridge Energy and Invenergy to stop project development beyond the 40 turbines that are already under construction. However, Titus said the existing turbines could only operate between Nov. 16 and March 31, when Indiana bats are hibernating.
Titus said the orders stand until the companies get an incidental take permit from the Fish and Wildlife Service.
The first phase of the Beech Ridge Project calls for the construction of 67 turbines that will produce 186 megawatts of electricity a year, which could power an estimated 50,000 West Virginia households annually. The project is expected to cause 6,746 bat deaths a year due to turbine collisions.
“The development of wind energy can and should be encouraged, but wind turbines must be good neighbors,” Titus wrote.
URL to article: https://www.wind-watch.org/news/2009/12/09/appalachian-wind-turbines-halted-by-judge-because-of-bat-slaughter/