Wind-turbine opponents convinced the D.C. Circuit that the government issued a permit to an Ohio wind farm without fully considering ways to reduce the deaths of endangered Indiana bats.
Ohio-based Union Neighbors United brought the 2013 complaint in Washington, D.C., taking issue with the U.S. government’s approval of a permit for the Buckeye Wind Power Project.
The Indiana bat has been listed as an endangered species since 1967. Though the species does not hibernate in the general area of that proposed facility in west-central Champaign County, it does migrate through the area during the spring and fall.
In its application for an incidental take permit under the Endangered Species Act, Buckeye Wind LLC estimated that its 100-turbine wind-generation facility, with use of various controls, would injure or kill 5.2 bats per year.
Finding that the proposal to lower turbine speeds during certain months met statutory standards, the U.S. Fish and Wildlife Service, or FWS, approved Buckeye Wind in 2013 for a five-year limit of 26 bat “takings.”
A federal judge granted the agency’s director and Secretary of the Interior Sally Jewell summary judgment last year, finding no violation of the Administrative Procedures Act, the National Environmental Policy Act or the Endangered Species Act, otherwise known as the ESA.
The March 2015 opinion credits the finding by the FWS “that the minimization and mitigation measures ‘fully offset’ the impact of the taking of Indiana bats, and thus, it was not necessary to determine if the plan was the ‘maximum that can be practically implemented.'”
But the D.C. Circuit partially reversed the ruling Friday, finding that the FWS failed to consider an economically feasible alternative that would kill fewer bats before issuing the permit.
“The Service knew, at a minimum, that Buckeye claimed a full nighttime option was not economically viable, and it was aware of other, more viable measures that would still take fewer bats than Buckeye’s proposal – Union Neighbors repeatedly suggested using a cut-in speed higher than 6.0 m/s,” Judge Robert Wilkins said, writing for the three-judge panel. “Yet the Service failed to consider any higher cut-in speed in either the draft or final [environmental impact statement].”
The FWS should have conducted an analysis of whether an increased cut-in speed would still allow the project to go forward while protecting more Indiana bats, the appeals court ruled.
However, Wilkins granted deference to the agency’s ESA decision, finding that it showed consistency in its analysis of this case and others.
“In this instance, ‘because the minimization and mitigation fully offset the impact of the taking,’ the Service found ‘it [was] not necessary to determine if the plan [was] the ‘maximum that can be practically implemented by’ Buckeye,” the 36-page opinion states. “In other words, if combined minimization and mitigation fully offset the take, it does not matter whether Buckeye could do more; Buckeye has already satisfied what is required under the ESA. Accordingly, the Service’s ESA findings were not arbitrary or capricious.” (Emphasis in original.)
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