Maybe, just maybe, after all this time, Highland supervisors are getting the message.
The letter to the county board this week spells out the same message they've been getting since 2005, but with emphasis on one thing officials here have chosen, for whatever reason, not to believe. That is: Citizens opposed to Highland New Wind Development's wind power facility are not against the idea of generating electricity with renewable, "green" energy. They're opposed to the location of the 400-foot towers this company chose in our county, and the lack of adequate planning in this case to avoid negative environmental impacts.
The top of Allegheny Mountain in Highland is not home to endangered species for no reason. The area boasts these threatened forms of flora and fauna because to date, the private landowners there have generally left it alone for centuries, or chose to actively protect the area. It's one of the few places these species have left where human interference has been minimal, and Mother Nature has been allowed to prosper instead of suffocate and adapt to human needs, developments and industries.
There is a law firm that gets this. And they've been hired.
Meyer Glitzenstein and Crystal is a mouthful, but the D.C.-based firm has a long, successful history of representing clients who typically have little money, but a lot of heart and dedication to doing right by wildlife, and the environment. This time, MGC chose to take up the case for those who vehemently believe HNWD's plans atop this mountain will do serious damage to what's left of at least two seriously endangered bat species, and other native wildlife.
MGC attorney Bill Eubanks didn't sound like a hotshot attorney this week, when asked about the case. He sounded like someone prepared to help his clients negotiate a sustainable way for the bats to survive, yet leave room for HNWD's project to be built - responsibly and profitably.
The firm feels confident this outcome is possible. It's confidence borne of experience.
It was only about four months ago that MGC negotiated that same result for other clients, based on a wind project under construction in Greenbrier County, W.Va., just a short distance from here. Developer Invenergy's Beech Ridge project had towers already up. When MGC filed suit, a federal judge ruled it had to stop construction and get an Incidental Take Permit from the U.S. Fish and Wildlife Service before it could finish the facility. It was a landmark, precedent-setting decision that sent ripples through the wind industry nationwide. For the first time, citizens successfully convinced a judge that wind power companies, in spite of federal policy support, must still follow the law.
That law, the Endangered Species Act, was meant to prevent harm to endangered species, not clean up problems and damage when it's too late. U.S. Circuit Court Judge Roger Titus understood this, and ruled accordingly. MGC was the firm that made the convincing argument.
That same firm is prepared to prove the same argument, again in federal court, against HNWD - and our supervisors - if necessary.
But what its clients seek, as Eubanks spells out this week, is an environmentally sensitive construction process. If HNWD gets an ITP, complete with a Habitat Conservation Plan that will help protect species and mitigate incidental damage to them, and if it offers up a virtual seat at the table for citizens as that plan is developed, then no suit will get filed.
If our supervisors, as they've been urged - begged - to do over the years, simply require HNWD get an ITP before issuing building permits for the towers, they, too, could save themselves the legal trouble, and save us, the taxpayers, the hundreds of thousands of dollars such a suit would cost in a locality with the lowest annual budget of any other county in Virginia.
One supervisor already agrees that HNWD's project, if it's built, should be constructed properly, with this kind of permit in hand. Another has been considering how much in legal fees the county can afford before the potential tax revenue from the utility would be negated. A third supervisor, unfortunately, has stubbornly dug in his heels, concluding that Highland should support this project come what may, no matter the cost to his constituents, and in spite of a clear majority of those opposed to it.
Those of us following the controversies plaguing HNWD know it won't be easy to get a cooperative agreement from the company, or its owners, Henry T. "Mac" McBride, his wife, Lola, and their son, Tal. They unfortunately hired a spokesman, Frank Maisano, who has put his foot in his mouth more than once. Maisano told one media representative this March there's no need for an ITP. "We don't think we need to because of the environmental/wildlife profile of the site," he said.
Again, in May, Maisano drove his point home, telling "Renewable Energy World" that HNWD is likely to pursue an ITP, but that in-depth studies the company conducted "had identified no endangered bats in the area and that the developer was not required to get one before construction. Further, he said, HNWD "is not likely to have a big impact" on bat populations. All of which, of course, is contrary to what state and federal agencies have said over the years, and backed up with independent research and analysis.
If nothing else, HNWD would do well to be rid of the mouthpiece who keeps contradicting the facts.
For now, the gauntlet has been thrown, and not for the first time. These citizens, coupled with the renowned Animal Welfare Institute, are seeking cooperation. If they don't get it, they have a solid chance of getting it ordered for them by a federal judge. Soon.
Our supervisors have their work cut out for them - and a decision needs to come quickly on
how to respond.
The same is true for HNWD. Despite weeks of good weather, the company hasn't done anything we can see to get its project off the ground. It has moved no more dirt; it has not applied for building permits; it has not announced a power purchase agreement; it has not boasted of landing
the financial backing it needs - something promised as forthcoming more than three years ago. Since the utility appears to be stalled, this is the right time for our county board to take action, study the legalities, and issue a response that makes sense: require HNWD to get a federal permit
before construction. That will effectively save Highland taxpayers from years of legal fees we don't have the money to pay for.
We hope they'll move fast enough. We get the distinct impression this firm doesn't waste its clients' time, and doesn't take on cases it can't win.