renewable energy law

The development of wind farms is a controversial land use issue in Ohio, as in other states.  Arguments abound on both sides and revolve around private property rights, community land use planning, green energy, preservation of open landscapes and wildlife impacts.  It is this last factor--impacts on wildlife--that convinced a federal court to halt a wind development project in the Appalachian mountains of West Virginia, much to the dismay of developers of the $300 million project.

The Indiana bat, an endangered species with the power to stop a wind development project

The Beech Ridge wind energy project involves construction of 122 wind turbines along  the ridgeline of the Appalachian mountains in Greenbrier County.   About forty of the turbines are currently in the construction phase, but the federal court has issued an injunction stopping construction of any additional turbines and limiting existing turbine use to the bat's winter hibernation period.  The reason:  project developers failed to take seriously the issue of harm to the Indiana bat.   The Indiana Bat is on the list of "endangered" species, and interference with the animal or its habitat is prohibited by the federal Endangered Species Act (ESA).   The wind project developers did hire an environmental consultant to examine the situation, but the consultant repeatedly disregarded information and advice from the U.S. Fish and Wildlife Service (FWS) that would have more accurately identified the Indiana bat population.   The court critized the consultant's efforts, stating that "[s]earching for bats near proposed wind turbine locations for one year instead of three, looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment."  Later surveys revealed the existence of two caves within ten miles of the project that are home to hundreds of bats, including Indiana bats, and evidence suggested that nearly 7,000 bats would die each year because of the project.

Despite the existence of the bats near the project, however, the court pointed out that Beech Ridge's developers could have requested an "incidental take permit" (ITP) pursuant to the ESA.  The ESA's incidental take permit mechanism could have allowed the project to proceed, but with preparation of an FWS approved Habitat Conservation Plan demonstrating that measures would be taken to minimize or mitigate adverse effects on the Indiana bat.  "Indeed, the 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," said the court.

The Animal Welfare Institute and Mountain Communities for Responsible Energy filed the lawsuit, and produced expert testimony indicating that Indiana bats exist near the project site and that there was a very high likelihood that the turbines would kill and injure the bats.   The court drew upon Benjamin Franklin in its response to the expert testimony,  stating ". . . the Court concludes, by a preponderance of the 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 . . ."

The difficulty of rendering such a decision is apparent in the court's opinion.   Judge Titus expresses disappointment and frustration with the project developer's approach to the bat issue, and "reluctantly" orders the injunction.  But unlike many in the wind development arena, the court does not hesitate to give credibility to the interference of wind turbines with the bat population.  He recognizes that the case illustrates a clash between two federal policies:  protection of species and encouragement of renewable energy development, but insists that the two policies are not necessarily in conflict because of  the ESA's incidental take option and the opportunity for harmonious development.  Seeking an incidental take permit is the only avenue available to help project developers resolve their "self-imposed plight," states the court.  "The development of wind energy can and should be encouraged," says Judge Titus, "but wind turbines must be good neighbors." 

As the Indiana bat did years ago, wind development has made its way to Ohio.  The Ohio Power Siting Board is currently considering approval of several wind projects including the Buckeye Wind Project, a 70 turbine project in Champaign County that would be Ohio's largest wind development.   Testimony by an environmental consultant at last month's hearings before the board focused on potential impacts of the project on the Indiana bat.  According to the consultant, studies revealed no evidence of the Indiana bat in the project area.   Studies in nearby Logan County in 2008 revealed the existence of Indiana bats in an area that has since been removed from the project, and another wind developer reported finding an Indiana bat in Champaign County earlier this year.  The Ohio Power Siting Board may take months to decide whether to approve the Buckeye Wind Project and to indicate its conclusions about impacts on Indiana bats.

In accordance with state policy promoting renewable resource development,  the Ohio Department of Natural Resources encourages wind developers to enter into a voluntary agreement to cooperatively address wildlife issues.  In the agreement, ODNR promises not to pursue liability against the developer for any incidental takings of endangered or threatened species.  However, ODNR's agreement cannot prevent private groups from challenging the turbines in federal court using the approach of the Beech Ridge Energy case.  Should the Ohio Power Siting Board approve a project like the Buckeye Wind Project, Ohio may see its own federal court case on Indiana bats and wind development.

Read the court's December 8, 2009 decision in the Beech Ridge Energy case here or go to the Maryland District Court's webpage for the opinion and order at http://www.mdd.uscourts.gov/publications/opinions/Opinions.asp.