December 23, 2009

The two big problems with the Indiana bat decision

By The two big problems with the Indiana bat decision

Author: Brandon Middleton

In response to a federal court's decision to halt a West Virginia wind energy project due to the potential resulting harm the project may have on Indiana bats, the Baltimore Sun's Tim Wheeler asks what the ramifications of the court's decision will be for simlar projects in Maryland: "Will opponents [of wind projects], who've been effectively neutralized by Maryland's streamlined review of projects under 70 megawatts, turn now to federal courts?"

Although it's difficult to forecast the exact consequences of the Indiana bat decision, I think it's a safe bet that the answer to Wheeler's question is "yes." If you oppose and wish to halt wind projects, why not turn to the federal courts, when under the Indiana bat decision it matters little that the species of concern can only be found 5-10 miles away from the project, and that operation of the project has never resulted in the death of an endangered species?

That said, I don't think that other federal courts should rely on this case as precedent, as the Indiana bat decision is significantly flawed.  There is, of course, the court's conclusion that it is "a virtual certainty" that the wind turbines will harm or kill Indiana bats, despite the fact that the bats are miles away from the project and there being no history of such harm.

But, having found an Endangered Species Act violation on these not-so-convincing facts, it's the court's resulting response and remedy to this supposed violation that is particularly egregious.  The court's injunction of future wind power development in Greenbrier County is wrong for two reasons.

First, the court has required Beech Ridge Energy and Invenergy to undergo the lengthy and expensive process of obtaining an ESA Incidental Take Permit.  The court reasoned as follows: "The ITP process is available to Defendants to insulate themselves from liability under the ESA and, while this Court cannot require them to apply for obtain such a permit, it is the only way in which the court will allow the Beech Ridge Project to continue."

In other words, the court is requiring wind project developers to obtain a take permit even though zero Indiana bats may actually be killed or harmed by the project.  I don't see why this is necessary, given that the Endangered Species Act imposes harsh civil and criminal penalties for ESA violations that do in fact occur.  The court appears to have read these deterrent provisions out of the statute, foreclosing the ability of Beech Ridge Energy and Invenergy to make a reasonable and calculated risk that their turbines won't harm Indiana bats.

The court opined that "the ITP process may find that some locations for wind are entirely inappropriate, while others may be appropriate."  Rather than having to go through this expensive bureaucratic process, private entities should be able to make the decision whether to obtain a take permit on their own–and if they make the wrong decision, they should pay the consequences.

Second, the court issued its injunction without considering whether the supposed ESA violations will have a population-level effect on the Indiana bat species.  Simply because one ESA violation has occurred or may occur (which again, in this case, is questionable), doesn't mean a court must impose a draconian injunction like the court's halting of wind turbine construction.  As another federal court recently noted, "injunctive relief is not mandatory upon every take that violates the ESA."  Instead, courts "should look to whether the violation is likely to harm the species as a whole.  Although a single take could cause irreparable harm and require an injunction, there may also be instances where take of an individual member has a negligible impact on the species as a whole."

Had the court in the Indiana bat decision engaged in this balanced and pragmatic approach, it's doubtful the same overreaching injunction would have been issued, given that only 3% of Indiana bats are located in West Virginia.  The court's failure to consider the Indiana bat species as a whole is indicative of its short-sighted approach to injunctive relief.  That an ESA violation exists in the Indiana bat case is dubious, but the resulting injunction of wind energy development in Greenbrier County is even more so.

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