A Maryland federal court ruling last week put a severe crimp in an industrial-scale wind project in West Virginia. Could it do the same for smaller projects planned in western Maryland?
U.S. District Court Judge Roger W. Titus found it “a virtual certainty” that the 122-turbine Beech Ridge facility being built along 23 miles of mountain ridges in Greenbrier County, W.Va., would violate the federal Endangered Species Act by killing Indiana bats. Construction is already under way on the $300 million, 186-megawatt project being developed by Invenergy, a Chicago-based company said to be one of the five largest wind developers in the country.
The little brown bats spend their summers eating insects in forests and migrate in fall to hibernate through the winter in caves. Found in 20 eastern states, including West Virginia and Maryland, they have continued to decline in number despite their longstanding legally protected status, the judge pointed out. After a protracted and losing battle in West Virginia to affect the wind project, opponents turned to the federal court.
After a trial in October, Judge Titus last week found that although no Indiana bats were reported within five miles of the project, there was evidence that there were caves where they hibernate within 10 miles. He concluded after reviewing testimony from biologists on both sides that “like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded or killed” by the massive, slowly spinning turbines, either by colliding with them or by air pressure changes as the blades rotate, which can damage bats’ lungs and eardrums, impairing their ability to fly and navigate.
The judge declared that 40 turbines now under construction can be completed, but no more could go up until the developer obtains an “incidental take” permit from the U.S. Fish and Wildlife Service. Such permits allow projects to kill endangered species, but to get them applicants must agree to take steps to minimize and mitigate the harm their activities will do to the protected animals.
“The development of wind energy can and should be encouraged,” Titus concluded, “but wind turbines must be good neighbors.” To read the full 76-page opinion, go here.
Invenergy issued a statement after the Dec. 8 ruling saying it would seek such a permit, according to The New York Times. In the meantime the judge said the turbines already up could only be operated in winter, when the bats are likely to be hibernating.
Could the ruling prompt wind opponents to raise similar objections about projects planned in Garrett and Allegany counties? They’ve already gained state approval under a streamlined regulatory process that lawmakers approved two years ago at the behest of wind developers, which limits state review of environmental and safety issues around such projects.
A map included in the judge’s opinion – from the draft recovery plan for the Indiana bat prepared by the U.S. Fish and Wildlife Service – shows the endangered bats have been found in summer and winter in Garrett and Washington counties, in Carroll County in summer and in Allegany County in winter. (Page 8 in the opinion, here)
Frank Maisano, a lobbyist for wind developers, thinks the ruling could pose “major problems” for other projects. He predicted last week in an email that getting the needed permits from the fish and wildlife service could take one to three years and cost several million dollars.
“With at least four projects expected to begin construction next spring, this decision could have a chilling impact on getting new projects moving to meet the incredible demand for clean energy,” Maisano wrote. Two of those are proposed on Backbone Mountain near Oakland in Garrett County. Constellation Energy recently announced plans to take over development of one, while the other would be built by Synergics of Annapolis.
Opponents no doubt hope the ruling slows the rush to harness the wind. They have long argued that industrial-scale wind facilities, especially on Allegheny mountain ridges, pose significant threats to bats and birds, both with the spinning of their massive blades and in the destruction of forest habitat for turbines and transmission lines. They also argue that wind turbines are a poor bet for clean energy, compared with nuclear power, because they rely on a variable and even intermittent power source – the wind. A 2007 study by the National Research Council called for further studies of the environmental and human impacts of wind facilities.
Will opponents, who’ve been effectively neutralized by Maryland’s streamlined review of projects under 70 megawatts, turn now to federal courts? That may depend on the facts surrounding each project, and whether any federally protected species have been reported in similar proximity. Or will developers find it prudent to hold up and apply for permits now, in a bid to head off litigation and possible legal roadblocks in mid-construction?
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