Federal judge halts Greenbrier wind project

A federal district court judge in Maryland placed a huge roadblock in the path of a planned industrial wind facility in northern Greenbrier County, saying construction of the wind turbines would violate the Endangered Species Act.

Judge Roger W. Titus issued an order Tuesday afternoon granting an injunction, which halts the $300 million project in its tracks.

Two organizations and an individual filed suit in June to stop construction on the project, which would include 119 turbines along 23 miles of ridgelines in northern Greenbrier County. The Animal Welfare Institute, Mountain Communities for Responsible Energy and Greenbrier County resident Dave Cowan argued the project would kill endangered Indiana Bats and that the project should not proceed because the developer, Beech Ridge Energy, LLC, had not obtained an incidental take permit.

Beech Ridge is a wholly-owned subsidiary of Invenergy, a Chicago-based corporation.

AWI is a nonprofit, charitable organization founded in 1951 to reduce suffering inflicted on animals by humans. MCRE is a nonprofit organization formed in September of 2005 to assess and disclose the impacts of the proposed wind energy facility in Greenbrier County.

The injunction orders a halt to construction and prohibits operation of 40 completed turbines between April 1 and November 15, the endangered bat's migratory period.

Judge Titus' opinion states that Beech Ridge's only recourse is to apply for an incidental take permit (ITP) from the U.S. Fish and Wildlife Service (FWS).

"This Court has concluded 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 an ITP. The Court does express the concern that any extraordinary delays by the FWS in the processing of a permit application would frustrate Congress' intent to encourage responsible wind turbine development. Assuming that Defendants now proceed to file an application for an ITP, the Court urges the FWS to act with reasonable promptness, but with necessary thoroughness, in acting upon that application," the opinion states in part.

Joe Condo, Invenergy attorney, told the Charleston Gazette that the company intends to obtain an ITP and complete the project.

MCRE spokesman Dave Buhrman said in an email December 9, "If Beech Ridge pursues an ITP, MCRE plans to stay involved in the process, and would encourage input from leading bat experts and environmental organizations to help shape that process. Section 10 of the Endangered Species Act requires that the public be involved in the process, and we intend to participate in a meaningful way to ensure that bat populations are protected, consistent with the ESA's mandate."

By law, an application for an ITP must include a mitigation plan to offset an activity's impact on an endangered species. Mitigation measures are actions that reduce adverse effects of a proposed activity on an endangered species.

Mitigation measures may include preservation of existing habitat; enhancement or restoration of habitat; creation of new habitats; establishment of buffer areas around existing habitats; modifications of land use practices and restrictions on access.

The FWS formed a Wind Turbine Guidelines Advisory Committee in 2008 to to recommend effective measures to avoid or minimize impacts of land-based wind energy facilities on wildlife and their habitats. The committee's final product will include a sample Avian and Bat Protection Plan, but the work is still in progress.