ESA & Wind Decision

On December 8, 2009, a federal district court in Maryland issued a significant decision in Animal Welfare Institute v. Beech Ridge Energy, LLC, enjoining the construction and operation of a West Virginia-based wind project because the project would harm endangered Indiana Bats in violation of the Endangered Species Act (“ESA”).

The ESA prohibits any action that is likely to result in a “take” of a threatened or endangered species, absent a permit or other authorization (often coupled with re-location and rehabilitation efforts for new habitats). A take is defined 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, certain environmental groups brought a citizen suit claiming the wind energy project – which consisted of 122 turbines and more than 300 acres of land along 23 miles of Appalachian mountain ridgelines – led to a “take” of the Indiana bats. The project was estimated to provide 186 megawatts of electricity. The Maryland federal district court agreed with the environmental groups and issued an injunction against construction of new turbines, as well as enjoined operation of completed turbines during non-winter months, based on the Court’s conclusion that there was a “reasonable certainty” that Indiana Bats would be killed by the project in violation of the ESA.

In fact, the Court recognized that construction and operation of the wind project could continue if developers and project operators obtained an incidental take permit from U.S. Fish and Wildlife Service (“FWS”) under Section 10 of ESA. Accordingly, this case indicates that, as wind energy projects increase, developers will want to bring the FWS into the discussion early on so as to consider the project’s potential impact on federally listed threatened and endangered species.

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