January 22, 2010

The Indiana bat decision: a dangerous precedent for alternative energy?

By The Indiana bat decision: a dangerous precedent for alternative energy?

Author: Brandon Middleton

I have previously criticized a federal court's decision to halt a West Virginia wind energy project decision. The court's decision is seriously flawed, mainly because it failed to consider how small of an impact the wind project would have on the endangered Indiana bat species. Rather than focus on the health of the overall species, the court took a narrow approach and looked only at the project's alleged effects on individual bats — this constrained analysis goes against Endangered Species Act case law which holds that projects may be enjoined only if there is a threat to the overall species. The injunction was completely unnecessary given that only 3% of the Indiana bat population is located in West Virginia, meaning that wind turbines in Greenbrier County could only affect a miniscule portion of the Indiana bats.

While the Indiana bat decision may have been wrongly decided, it doesn't look like it's going away anytime soon. Beech Ridge Energy (the wind project developer) and Animal Welfare Institute (the plaintiff that brought the ESA lawsuit) have submitted a joint stipulation (available here) to the court that would require Beech Ridge to "ameliorate the overall impact of the project on Indiana bats – including abandoning certain of the turbine sites closest to known Indiana bat hibernacula – while being able to construct some additional turbines, and operate turbines during daylight hours when Plaintiffs’ experts agree that Indiana bat deaths are unlikely." In other words, it's doubtful that the Indiana bat decision will be appealed.

Beech Ridge Energy likely has its own valid reasons for choosing to forego an appeal — it may want the rest of the project to finally proceed and end the litigation, or it may not want to jeopardize the possibility of settlement, or both. If the court approves the settlement, however, it will have given the green light for the Endangered Species Act to be used to stop all sorts of alternative energy projects that have speculative impacts on endangered species. As I noted earlier, it looks like this disturbing trend is already happening.

Bonner R. Cohen and Robert J. Smith have related thoughts at the Heartland Institute:

The proliferation of wind farms and solar energy facilities in previously undeveloped areas has unleashed a backlash within the environmental movement, of which the West Virginia court case is but one example.

“The greens don’t want alternative energy either,” said Robert J. Smith, senior fellow with the National Center for Public Policy Research. “Yes, they love it in theory, or at least promise its acceptance and approval if we will just get rid of the polluting energy sources of the past. But once an actual project is proposed and planning gets underway for a facility large enough to light anything other than a two-room apartment, the greens are up in arms to bring it to a halt.

“There are enough listed species [under the ESA] spread across the continent and enough obscure and little-known species that could be listed that almost any type of energy project anywhere could be halted,” Smith added. “In fact, the FWS has already suggested that the Indiana bat is also subject to coal-mining impacts in West Virginia, so the bat trumps energy from the air or from the ground.”

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