Federal Court Rules Wind Energy Project in Violation of ESA

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

WASHINGTON, Dec. 9, 2009 /PRNewswire-USNewswire/ -- 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.

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 http://www.awionline.org/beechridgebats

SOURCE Animal Welfare Institute

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