January 25, 2010
A recent federal district court decision in Maryland confirms that the restrictions of the Endangered Species Act (hereinafter "ESA") will be deemed to fully apply to renewable energy projects. The decision may serve as a bellwether case for how courts will resolve future conflicts between two key federal environmental policies: protecting endangered species and encouraging the development of alternative energy. The case is Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. RWT 09cv1519 (D. Md. Dec. 8, 2009), where the court enjoined the construction and operation of a wind energy project in West Virginia on the grounds that the project constituted a taking of the endangered Indiana bat in violation of Section 9 of the ESA.
The Beech Ridge Energy Project and the Indiana Bat
The case centered on plans by defendant Beech Ridge Energy LLC to construct 122 wind turbines along 23 miles of Appalachian mountain ridgelines. The critical issue was whether endangered Indiana bats were present in the proposed project area. Their presence in the area could potentially expose them to harm from collisions with turbine blades and from changes in air pressure caused by the turbines that could damage their eardrums and lungs.
The ESA Prohibits the "Taking" of Endangered Species
Section 9 of the ESA makes it unlawful for any person to "take any [endangered] species within the United States." 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). In Beech Ridge Energy, the court held that a taking is established when a plaintiff shows "by a preponderance of the evidence, that the challenged activity is reasonably certain to imminently harm, kill or wound the listed species."
Proper Testing Techniques Established That Indiana Bats Would Be Harmed by the Beech Ridge Energy Project
The court first addressed the issue of whether Indiana bats were present in the proposed project area. Before beginning construction, Beech Ridge Energy had hired an environmental consultant who tested for the presence of Indiana bats by setting up fifteen mist-net sites during the summer. Because the mist-nets did not catch any Indiana bats, the consultant concluded that none were present. The U.S. Fish and Wildlife Service (hereinafter "FWS"), the agency charged with administering the ESA, had warned Beech Ridge Energy that its tests failed to provide sufficient information about the presence of the endangered bats during seasons other than summer. Additionally, the FWS had suggested that the defendant’s environmental consultants conduct an acoustic analysis of bat calls in the region to more accurately gauge the presence of Indiana bats. One of the consultant’s subcontractors conducted such testing, but the consultant never interpreted the test results and never turned them over to the FWS or any other regulatory authority.
Plaintiff Animal Welfare Institute retained its own experts, who conducted various acoustic analyses and testified that there was a high probability that Indiana bats were present in the project area. The court credited the plaintiff’s experts and concluded that there was sufficient evidence of the presence of Indiana bats and that they would be harmed by the wind turbines. The court seemed to assign significant weight to the fact that the defendant’s consultants had failed to heed the FWS’ testing recommendations and had used testing methodologies that were questioned by the plaintiff’s experts.
The Court Held That Beech Ridge Energy Must Receive an Incidental Take Permit or Discontinue Its Wind Energy Project
In light of its finding that Indiana bats would be harmed by the Beech Ridge Energy wind power project, the court enjoined the operation of all wind turbines in the area except during the winter season when Indiana bats hibernate. The court held that imposing a set of voluntary adaptive management practices, that would have been less than a seasonal shutdown, on Beech Ridge Energy would not sufficiently protect the Indiana bat. The court concluded that the defendant’s past disregard of the FWS’ pre-construction testing recommendations made it especially unlikely that the defendant would make any meaningful effort to mitigate or minimize damage to the Indiana bat after construction. The court held that Beech Ridge Energy’s only option if it wanted to continue with the project was to apply for an incidental take permit in accordance with § 1539(a)(1)(B) of the ESA.
The Beech Ridge Energy Decision Provides Guidance for Companies Seeking to Construct or Operate Renewable Energy Projects
The Beech Ridge Energy decision signals that even highly encouraged renewable energy projects will be held to the same stringent requirements of the ESA as any other industrial building projects. The ESA does not provide for any balancing of environmental considerations. Accordingly, wind farm developers should look at all relevant federal and state environmental laws and regulations before purchasing land or commencing construction on a project. Furthermore, renewable energy producers should give serious consideration to conducting all tests recommended by relevant regulatory authorities and utilize advanced testing technologies when searching for the presence of an endangered species. Finally, if a wind energy producer determines that an endangered species is present at a potential site, and the project could result in a taking, the producer should seek an incidental take permit before beginning construction.
Gibson, Dunn & Crutcher’s lawyers are available to answer any questions you may have regarding these issues. We also handle a range of other environmental litigation and counseling matters nationwide. To learn more about the firm’s environmental litigation, please contact the Gibson Dunn attorney with whom you work, any member of the Environment and Natural Resources Practice Group, or any of the following:
Patrick W. Dennis – Practice Co-Chair, Los Angeles (213-229-7567, firstname.lastname@example.org)
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Peter E. Seley – Practice Co-Chair, Washington, D.C. (202-887-3689, firstname.lastname@example.org)
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