December 29, 2010

Alternative energy and the return of Indiana bat litigation

By Alternative energy and the return of Indiana bat litigation

Author: Brandon Middleton

You may recall that around this time last year a federal court in Maryland issued a controversial decision to halt a wind energy project located in West Virginia.  The court felt the decision was necessary in order to protect endangered Indiana bats under the Endangered Species Act.  But as I explained on this blog, the 2009 Indiana bat decision (Animal Welfare Institute v. Beech Ridge Energy, 675 F. Supp. 2d 540) was significantly flawed, mainly because it found a violation of the ESA and enjoined the wind energy project even though the project had never actually harmed an Indiana bat, not to mention that the project was located several miles away from the closest population of bats.

Emboldened by this flawed decision, environmentalists are back in federal court trying to stop another wind energy project.  This time, it's Save Western Maryland filing suit under the ESA against Constellation Energy and its Maryland wind project.  From the Baltimore Sun:

Conservationists filed suit Wednesday to block the start of Maryland's first industrial wind project, contending the turbines built atop the state's highest mountain in Garrett County threaten to harm federally protected rare bats.

Making good on a threat issued months ago, two groups — Save Western Maryland and the Maryland Conservation Council — and two individuals brought suit against Constellation Energy in U.S. District Court in Greenbelt, contending that its wind turbines will "almost certainly" injure or kill Indiana bats, which are so few in number that they are legally protected under the federal Endangered Species Act.

The lawsuit comes as Constellation prepares to start generating power in the next several days from its Criterion wind project — 28 turbines that stand 415 feet high when their blades are at maximum skyward extension.

Similar to the 2009 Animal Welfare Institute Indiana bat decision, Save Western Maryland claims that Constellation Energy's wind project will "almost certainly" harm bats, yet the closest location of bats is actually 13 miles from the project's site, as alleged in the the environmental group's complaint.  Not surprisingly, Maryland state biologists are skeptical of Save Western Maryland's claims, pointing out that in fact "there has been no substantiated record of Indiana bats in that cave or in another, about 10 miles away, for a long time."

So it looks like this is just another environmentalist attempt to stop a needed energy project, although this time the project happens to be "green," "alternative," or whatever you want to call it.  If Save Western Maryland's litigation against Constellation Energy proceeds, let's hope the court overseeing the case will take a reasonable and balanced approach towards the Endangered Species Act and allow the company to complete the project, unlike the court in the 2009 Animal Welfare Institute Indiana bat decision.

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