US judge halts wind project to protect endangered bats

In a national first, a federal judge has ruled that an Invenergy wind project in West Virginia will violate the Endangered Species Act (ESA) and must obtain a permit for the injury or death of Indiana bats.

US District Court Judge Roger Titus says in his 76-page opinion: “This is a case about bats, wind turbines, and two federal polices, one favoring protection of endangered species and the other encouraging development of renewable energy resources. ... It is uncontroverted that wind turbines kill or injure bats in large numbers, and the Court has concluded, in this case, that there is a virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana bats in violation of Section 9 of the ESA.”

Chicago-based Invenergy, which calls itself the largest independent wind developer in the US, has already begun construction on the project, anticipated to eventually have capacity of more than 180 megawatts, in Greenbrier County, West Virginia. The company has 19 operating projects with nearly 2 gigawatts of capacity in North America and Europe. It is also a major natural gas power plant developer and is moving into solar.

Animal Welfare Institute, one of the environmental groups that brought the case against Invenergy subsidiary Beech Ridge Energy, praises the ruling in a statement, calling it “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 decision may have lasting repercussions for US wind energy project development, setting a precedent and emboldening project opponents.

Judge Titus says the only way in which the project may continue is to obtain an incidental take permit (ITP) from the US Fish and Wildlife Service (USFWS), which allows the injury or death by lawful activities of federally protected species. The process of obtaining an ITP can take several years and cost millions of dollars.

Invenergy intends to pursue the ITP, says Joe Condo, company vice president and general counsel.

"Invenergy continues to be committed to the Beech Ridge project and bringing clean renewable energy to West Virginia," he tells Recharge via e-mail. "As ordered by the judge, we will approach the Fish and Wildlife Service and begin the Incidental Take Permit process so that we can complete the project. We are very optimistic that the permit will be granted and the project can reach its full potential."

Titus does not stop completion of 40 turbines currently under construction, but “any construction of additional turbines should not be commenced unless and until an ITP has been obtained. The simple reason for this is that the ITP process may find that some locations for wind turbines are entirely inappropriate, while others may be appropriate.”

The Beech Ridge Project was to include about 120 turbines.

The 40 turbines may only be operated four and a half months a year, from 16 November to 31 March, the period when Indiana bats are in hibernation.

Titus says the court rejects the testimony of the developer’s environmental consultant and faults him for viewing formal communications from federal wildlife officials ‘through rose-colored glasses’.

“[T]he tragedy of this case is that Defendants disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species,” Titus says. [See a PDF of the full ruling here.]