Renewable energy project sponsors, builders, operators and investors should take notice of this case and its possible implications for their projects.
On December 8, 2009, a federal district court in Maryland issued an injunction under the Endangered Species Act (ESA) restricting construction and operation of wind turbines in West Virginia because of the projected harm to Indiana Bats, an endangered species, in Animal Welfare Institute, et al. v. Beech ridge Energy LLC, et al. The case was brought by two NGOs and an individual under the ESA. The district court found that plaintiffs had statutory jurisdiction under the ESA’s citizen-suit provision, and constitutional standing as a result of the harmful effect of the wind turbines on their use of Indiana Bat caves and other habitats in the vicinity of the project site.
The court’s order stated that the construction and operation of wind turbines at the project site violated Section 9 of the ESA, which makes it unlawful for any person to “take” (“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”), unless and until the defendants obtained an “incidental take permit” (ITP) from the U.S. Fish and Wildlife Service (USFWS). An ITP requires a Habitat Conservation Plan (HCP), which is designed to minimize and mitigate harmful effects of the proposed activity on endangered species, and compliance with the National Environmental Policy Act (see the USFWS website for more details on ITP and HCP). The injunction prohibited the construction of any additional wind turbines and the operation of any turbines at the site between April 1 and November 15 in any calendar year, when the bats were likely to be present. The court based its injunction on the ITP process that is available to the defendants, noting that while it could not require the defendants to apply for or obtain such a permit, that was the only way in which the court could allow the project to continue.
This case has two broader implications. The first is the multi-state scope of the Indiana Bats in counties shown on the USFWS map in the opinion: Vermont, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, West Virginia, Ohio, Kentucky, North Carolina, Tennessee, Mississippi, Florida, Michigan, Indiana, Wisconsin, Illinois, Iowa, Missouri, Arkansas and Oklahoma. The second is the potential for such an injunction on other endangered species with respect both to wind turbines and to other renewable energy projects. Renewable energy project sponsors, builders, operators and investors should take notice of this case and its possible implications for their projects.