Enviro groups continue to use flawed federal court decision to stop alternative energy projects

Author: Brandon Middleton

Environmental activists have once again used a flawed federal court decision in an attempt to forestall an alternative energy project on the East Coast.

The Animal Welfare Institute and others claim that installation and operation of the Highland New Wind Development in Virginia will violate the Endangered Species Act by resulting in "takes" of endangered species, including the Indiana bat and the Virginia big-eared bat. The group argues that under the December 2009 decision in Animal Welfare Institute v. Beech Ridge Energy, local county officials and Highland New Wind Development "must refrain from all construction activities until and unless an [Incidental Take Permit] is obtained."  HWND received a similar letter in January, as discussed here.

The problem, however, is that the Beech Ridge Energy decision was wrongly decided.  As I have explained previously, requiring a private company to go through the lengthy and costly ITP process is unnecessary given the harsh civil and criminal penalties for ESA violations that do in fact
occur.  Likewise, it defies common sense to have a knee-jerk reaction and prohibit an alternative energy project that may result in the take of some individual members of an endangered species. 

The Endangered Species Act does not require overbroad protection of each and every member of an endangered species no matter the cost, especially if such protection would have no bearing on the overall health of the entire species population.  But the Animal Welfare Institute et al. feel otherwise, and unfortunately they have a federal court decision (albeit one that was wrongly decided) to use to meet their demands.