July 9, 2012

The wind energy case that's going nowhere

By The wind energy case that's going nowhere

Readers may recall a few years ago when a federal court enjoined a West Virginia wind energy project from going forward due to alleged threats to the endangered Indiana batI criticized the court’s decision in Animal Welfare Institute v. Beech Ridge Energy for its flawed reading of the Endangered Species Act, and I warned that the decision would be used as precedent in misguided attempts to thwart other alternative energy projects.

Sure enough, shortly after the Beech Ridge Energy litigation, another Endangered Species Act lawsuit was filed against the Criterion Wind Project in Maryland over similar Indiana bat concerns.  The lawsuit was brought by two environmental groups (Save Western Maryland and Maryland Conservation Council) and two individuals against Constellation Energy and Criterion Power.  The plaintiffs in Save Western Maryland v. Constellation Energy claimed that defendants were and would be in violation of the Endangered Species Act’s take prohibition and asked the court to enjoin the defendants “from violating the ESA with respect to the Indiana bat, unless and until defendants obtain permission to do so from the U.S. Fish and Wildlife Service pursuant to the procedural and substantive requirements of section 10 of the ESA,” which allows for incidental take permits.

Criterion Wind Project (credit: Exelon Corp.)

The odd thing about Save Western Maryland is that little has happened since the plaintiffs filed their lawsuit in December 2010.  The parties have twice stipulated to stay proceedings in the case, with the latest stipulation stating that a stay would allow the parties to “further explore whether there is a possibility of settlement in this matter and will also allow for further developments with regard to the application by Criterion Green Energy LLC for an Incidental Take Permit under the Endangered Species Act, which is one of the critical issues in the case.”  But that stipulation was entered into on August 16, 2011, and called only for a 60 day stay–the two month time period has long since expired, yet there have been no subsequent filings from either the court or the parties.

Of course, there may be developments in Save Western Maryland to which I am not privy, and litigation in general is admittedly slow going.  A recent merger between Constellation and Exelon Corp. may also help to explain the absence of filings after stay expired this past October.

Still, the complete silence in the case’s docket is puzzling, especially when one considers that the Criterion Wind Project’s turbines are up and running in Garrett County, Maryland.  If the environmental plaintiffs are as concerned with the Indiana bat as they claimed to be in their complaint, I would have expected a motion for a preliminary injunction to have been filed by now.  Then again, the plaintiffs’ entitlement to injunctive relief under the ESA for speculative threats to the Indiana bat is highly questionable.

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