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Wednesday, December 09, 2009

Environment - "Appalachian Wind Turbines Kill Bats, Judge Says" [Updated]

Updating this list of earlier ILB entries, Avery Fellow of Courthouse News Service reports today in a story that begins:

(CN) - 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," U.S. District Judge Roger Titus wrote.

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.

This Oct. 22, 2009 ILB entry links to background stories on the lawsuit.

Thanks to the CN, here is a link to the 2-page Order of the DC Md. in Animal Welfare Institute v. Beech Ridge Energy.

[More] From the Environmental News Service, this story.

[Updated 12/10/09] "Court constricts W.Va. wind farm to protect bats: Company must apply for special permit to build more turbines" reads the headline to this story this morning, reported by Maria Glod of the Washington Post. It begins:

In a rare green vs. green court case, a federal judge in Maryland has halted expansion of a West Virginia wind farm, saying its massive turbines would kill endangered Indiana bats.

U.S. District Judge Roger W. Titus ruled that Chicago-based Invenergy can complete 40 windmills it has begun to install on an Appalachian ridge in Greenbrier County. But he said the company cannot move forward on the $300 million project -- slated to have 122 turbines along a 23-mile stretch -- without a special permit from the U.S. Fish and Wildlife Service.

"Like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project," Titus wrote in a 74-page opinion. "The development of wind energy can and should be encouraged, but wind turbines must be good neighbors."

The lawsuit in Greenbelt is the first court challenge to wind power under the Endangered Species Act, but as wind and solar farms rapidly expand nationwide, similar battles are playing out. Officials and environmentalists are working to find a balance between the benefits of clean energy and the impact on birds, bats and even the water supply.

Thanks to the WAPO, here is a link to the 71-page opinion.

[Updated 12/14/09] See this Baltimore Sun feature, "Bat ruling casts shadow on MD wind projects?"

Posted by Marcia Oddi on December 9, 2009 01:59 PM
Posted to Environment