Dec 9 - McClatchy-Tribune Regional News - Rick Steelhammer The Charleston Gazette, W.Va.


A federal court opinion filed Tuesday in Maryland blocks completion of the planned 119-turbine Beech Ridge Energy wind farm in Greenbrier County, and restricts the operation of the project's 40 already-built turbines to the hibernation period of an endangered bat species.

The opinion, written by U.S. District Judge Roger W. Titus in Greenbelt, Md., determined that Beech Ridge violated the terms of the Endangered Species Act by not obtaining an Incidental Take Permit from the U.S. Fish and Wildlife Service before beginning work on the project.

"This is a case about bats, wind turbines, and two federal policies, one favoring the protection of endangered species and the other encouraging the development of renewable energy resources," Titus wrote in the opinion.

"Congress, in enacting the Endangered Species Act, has unequivocally stated that endangered species must be afforded the highest priority, and the Fish and Wildlife Service long ago designated the Indiana bat as an endangered species. By the same token, Congress has strongly encouraged the development of clean, renewable energy, including wind energy," he continued.

But Titus determined that the facts in the case prove "that wind turbines kill or injure bats in large numbers," and that there is a "virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana bats" in violation of the Endangered Species Act.

The need to develop renewable energy and to protect endangered species "are not necessarily in conflict," Titus wrote "Indeed, the tragedy of this case is that the defendants (Beech Ridge and its parent company, Invenergy LLC of Chicago) disregarded not only repeated advice from the Fish and Wildlife Service but also failed to take advantage of a specific mechanism, the ITP (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 concluded that the only way for Beech Ridge 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." He urged the Fish and Wildlife Service to "act with reasonable promptness but with necessary thoroughness" in expediting the permit.

Titus ruled that the 40 turbines already complete at the site would be allowed to generate power, but only from mid-November through the end of March, the hibernation period of the Indiana bat.

"The development of wind energy can and should be encouraged, but wind turbines must be good neighbors," he concluded.

Tuesday's opinion followed a four-day trial in Maryland in October. Plaintiffs in the case were the Animal Welfare Institute, Mountain Communities for Responsible Energy and caver David G. Cowan.

Titus's opinion "is basically what we were looking for," said John Stroud of Mountain Communities for Responsible Energy. "We are really pleased with it. I think it means other wind developers will have to pay more attention to endangered species requirements before they build, and that will be good for everyone."

Washington, D.C., based wind energy industry spokesman Frank Maisano said Titus' ruling could "embolden die-hard opponents of wind power projects that are approaching the finish line."

The plaintiffs in the Beech Ridge case, he said, "have thrown everything but the kitchen sink at this project, and finally something has stuck."

Prior to filing suit in federal court in Maryland, Beech Ridge opponents unsuccessfully sought a West Virginia Supreme Court review of a February decision by the state Public Service Commission to allow construction to begin. The PSC initially approved the $300 million project in 2006.

Reach Rick Steelhammer at rsteelhammer@wvgazette.com or 304-348-5169.

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