Federal judge halts wind plant in Greenbrier, WV

MONTEREY — "Wow."

That's what many opponents of industrial wind energy said recently when a federal court ruled this month that a West Virginia project could violate the Endangered Species Act, and stopped the utility in mid-construction.

Locally, many wonder whether Highland New Wind Development's 38-megawatt plant on Allegheny Mountain could be affected by a similar ruling.

The situations are alike in many ways, though the West Virginia project is larger. Beech Ridge Energy LLC, owned by Invenergy of Chicago, the country's fifth largest wind developer, is building a 122-tower plant in Greenbrier County, along 23 miles of Appalachian ridges. Two groups and an individual sought an injunction, arguing the project was likely to kill Indiana bats, an endangered species. U.S. District Judge Roger W. Titus agreed, and granted the injunction Dec. 9.

Indiana bats also can be found in Highland County, according to state experts, and HNWD's project is closer to one of the places those bats exist in higher numbers.

The Animal Welfare Institute, Mountain Communities for Responsible Energy, and Greenbrier County resident Dave Cowan filed suit in June, saying Beech Ridge Energy didn't get a federal incidental take permit, and its facility would kill Indiana bats, which have been listed as endangered since 1967.

HNWD did not get such a permit either, though it was urged to do so by the U.S. Fish and Wildlife Service and Virginia's Department of Game and Inland Fisheries.

Judge Titus, in his opinion granting the injunction, said Beech Ridge can continue building its 186-megawatt plant if it gets an incidental take permit through the USFWS.

"This court has concluded that the only avenue available to defendants to resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for an ITP," Titus said in his opinion in the case. "The court does express the concern that any extraordinary delays by the FWS in the processing of a permit application would frustrate Congress' intent to encourage responsible wind turbine development. Assuming that defendants now proceed to file an application for an ITP, the court urges the FWS to act with reasonable promptness, but with necessary thoroughness, in acting upon that application," he wrote.

"The development of wind energy can and should be encouraged, but wind turbines must be good neighbors," he added.

It was the first time in the U.S. that a federal court found a wind developer in violation of federal environmental law.

Judge Titus said the two federal policies at issue in the case — supporting renewable power and protecting endangered species — are not necessarily in conflict because Beech Ridge could have applied for a permit.

"Like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project in violation of ... the ESA during the spring, summer, and fall," he concluded.

Experts testifying included some already familiar in the HNWD case, including bat biologist Dr. Thomas Kunz of Boston University and Dr. Michael Gannon of Penn State.

Kunz said the Beech Ridge turbines could kill as many as 250,000 bats of several species, and noted some bats were already heavily threatened by white nose syndrome, a disease that has been found in the region near HNWD's project as well.

Forty of the planned 122 turbines in Greenbrier County are already built; they are ones farthest away from Indiana bat populations. But now, the company cannot build the rest of them unless it gets the take permit, and those already erected may not operate between April 1 and Nov. 15 until an incidental take permit is in place. The rest of the year, the bats are in hibernation, the judge noted, and are not at risk from the turbines' spinning blades.

Beech Ridge had hired a consultant to do "mist net" surveys of bats in its project area, something HNWD did as well. The consultant found no Indiana bats in its studies at Beech Ridge, but the judge was convinced by testimony and evidence that the surveys were inadequate.

West Virginia environmental agencies, like Virginia's, had recommended pre-construction research. West Virginia's Public Service Commission required some pre-construction studies at Beech Ridge when it issued the developer a state permit, but the judge found the conditions outlined by the agency inadequate for enforcing the law.

Mustoe resident Rick Webb, who has for years opposed HNWD's project location due to the unspoiled environment on Allegheny Mountain and the many threatened and endangered species there, said, "It seems increasingly likely that the HNWD project will eventually get the kind of environmental review that it should have gotten all along, and given the issues involved, it seems increasingly likely that the project will not go forward. The risk to endangered species is greater at the HNWD site than at the Beech Ridge site."

When HNWD applied for a state permit in Virginia, two years of evidentiary proceedings took place. Those included testimony about species in this area like the northern flying squirrel, bald and golden eagles, and Indiana and little brown bats. Virginia's Department of Game and Inland Fisheries concluded HNWD's project could kill more bats than any other project in the Allegheny region, and recommended 2-3 years of pre-construction studies and a cumulative impact study.

Virginia's State Corporation Commission did not make preconstruction studies a requirement, however. Nor did it require HNWD to get an incidental take permit, though it noted the company was taking a risk by not getting one.

"The Beech Ridge precedent makes it clear that the Endangered Species Act applies and that developers who choose to ignore U.S. Fish and Wildlife Service recommendations are indeed taking a big financial risk. It's been a very costly lesson for the Beech Ridge developer," Webb said Tuesday. "HNWD has been pursuing the same reckless strategy, likewise choosing to go forward without the incidental take permit recommended by federal and state natural resource agencies. As the State Corporation Commission concluded, it is a business risk, and it is HNWD's risk to take. The question I have now is whether our county supervisors are willing to continue sharing that risk. How much more legal and financial liability is Highland County going to assume on behalf of HNWD?"

Supervisor Robin Sullenberger, chairman of the Highland board, agreed, to a point. He said he was not overly surprised by the judge's decision, but there is no way to do an "apples to apples" comparison between the Beech Ridge project and HNWD.

"The county's position has always been that it's not our responsibility to enforce the Endangered Species Act," he said this week. But personally, he added, "I have always felt an incidental take permit should have been strongly considered. Highland New Wind has chosen to take that business risk, and it's their risk to take."

Sullenberger said stopping HNWD's project would have a detrimental effect on the county. Highland anticipates tax revenue from the facility, "and it did go through the process, the democratic process, and was approved. Now, this potentially stops the whole process."

Sullenberger saw HNWD attorney John Flora this week. Flora mentioned to him that HNWD was aware of the Beech Ridge injunction, and is cognizant of the fact that it's a potential issue for HNWD as well, Sullenberger said.

"I suspect … that HNWD would be paying close attention to this, and scrutinizing this, and frankly, be a little edgy about it," he added.

Sullenberger did not know whether HNWD would reconsider its decision not to obtain the federal take permit, and he was not prepared to say whether he would ask HNWD to get one. "But you can never say never to any question (about this project) … This is not the end of this saga."

Since 2005, a group of Highland citizens has warned supervisors and HNWD they will sue if the conditions of the local permit are not met and state and federal laws are not followed.

James Jennings and Dan Summerlin of Woods Rogers in Roanoke represents that group of Highland residents and landowners. This week, Jennings said his clients are prepared to give Highland's board one more chance to enforce its conditional use permit, which includes a requirement that HNWD abide by all state and federal laws.

Jennings and Summerlin have consulted with attorneys in the Beech Ridge case.

While they do not yet know when their clients will be ready to file suit, Jennings said they are not under any deadlines, and aren't likely to take action before the end of the year.

For now, they anticipate sending another notice of intent to sue to HNWD and Highland County. "We will give the county one more opportunity to comply with the law," he said this week.

Also, he said, it's possible other national groups or individuals might want to join any legal action.

"This was a very significant ruling by a very fine judge," Jennings said. "It gives us a high comfort level that you do not have to have a kill before enforcement … Highland County acted at its peril in not requiring Highland New Wind to get an incidental take permit when it knew one was required."

Jennings called the parallels between the two cases "remarkable," and said the Highland project has more endangered species involved than one kind of bat.

In his Beech Ridge ruling, Judge Titus said the Endangered Species Act "as well as its legislative history, unequivocally demonstrate that Congress intended that protection of endangered species be afforded the highest level of importance."

Jennings' arguments in previous warnings to the county were similar to those upheld by Judge Titus in the Beech Ridge case. He told Highland officials that if they granted HNWD building permits, they could be violating the Endangered Species Act.

In February, he told them that since his initial notice in 2005, "the Department of Interior has advised Highland County that compliance with the ESA is mandatory, and there have been proceedings in the Virginia State Corporation Commission that show HNWD's proposed activities are to a reasonable certainty going to violate the ESA unless an incidental take permit is procured."

HNWD did a limited amount of site work this fall, but has shut down for the winter. It has not yet applied for the building permits it needs to erect its 19 towers or substation.

The conditional use permit issued to HNWD, Jennings told the county, "requires (HNWD) to comply with federal and state environmental laws and to procure all approvals required by federal and state agencies" as a condition before it can get building permits.

In addition to the ESA, the Bald and Golden Eagle Protection Act requirements must also be met, Jennings said. His clients expect the county to take certain actions they believe are mandatory before Highland can issue building permits for the project, he added, and most of them are "ministerial acts of Highland County not left to any legislative discretion. We realize that we are dealing with complex issues that require the expertise of engineers and scientists as well as counsel to apply the applicable laws and regulations. Highland citizens (are) prepared to assist Highland County in any manner appropriate to work through the applicable environmental laws."

In another similarity with the Beech Ridge decision, Jennings told Highland officials that the Endangered Species Act is broad, and harm to protected species does not have to occur before there can be a cause of action.

Judge Titus, in granting an injunction in the Beech Ridge case, agreed, saying the ESA was designed to include claims of future injury. "Protecting against the threat of imminent future harm is clearly consistent with Congress' broad definition of the term 'take,'" he said. "Requiring that a listed species be harmed, wounded, killed, or harassed before conferring jurisdiction would thwart this central goal of the act."

Jennings, too, had cited case law to argue that even "future injury" to an endangered or threatened species is actionable. "The essential purpose of the ESA is to conserve and protect endangered species before they are rendered extinct," he told Highland officials. "The emphasis on conservation and the prevention of harm is the logical extension of the ESA and any suggestion that an actual taking must occur before an individual can be compelled to comply with the ESA would directly contradict the primary purpose of the ESA."

Jennings said HNWD's facility would result in the "taking" of at least two endangered bats, and noted evidence presented to the SCC to support that conclusion.

When SCC hearing examiner Alexander Skirpan gave his report to the commission, he acknowledged federal and state wildlife agencies have said the project poses a risk to endangered species and that HNWD should enter into a habitat conservation plan and obtain an incidental take permit.

The Endangered Species Act allows permitting for taking a species when it's "incidental to, and not the purpose of, carrying out of an otherwise lawful activity."

Those applying for an incidental take permit must submit a habitat conservation plan that describes the impacts of the proposed taking, and procedures they will use to minimize and monitor those impacts. An applicant also must explain why there are no alternatives to harming those species.

If a permit is issued, the USFWS monitors the project for compliance. It can suspend or revoke a permit if the company does not comply with its conditions.

Without an incidental take permit, a company that does construction which brings harm to endangered species may be subject to criminal and civil federal enforcement actions, including civil fines of up to $25,000 per violation, criminal fines of up to $50,000, and imprisonment for one year.

Jennings said Highland's board of supervisors could be enjoined from taking endangered species, even if that taking is done by HNWD, and could be held liable under the law.

Despite two notices from Jennings of intent to sue on these grounds in federal court, Highland supervisors have not been swayed. County attorney Melissa Dowd advised the board it couldn't require HNWD to obtain an incidental take permit.

"It's my position that we have withstood a variety of lawsuits on this project, and the county's process was clearly followed," Sullenberger said. "I have not felt anything was done incorrectly. I feel we would prevail (in court). The problem is, you incur more costs, further expenses, and ultimately don't want to be going in the hole."

Highland expects to get roughly $200,000 annually from HNWD's project, he noted, "and you have to balance that against the expenditures we've had to date" related to administrative costs, previous lawsuits, and ongoing work.

Should HNWD's project be stopped, Sullenberger said he is not sure what the county's recourse could be. "If that were potentially the case, we'd be delving into all the facts of this all over again in terms of what recovery we could get," he said.

He declined to speculate on the consequences, saying the process has been "convoluted and lengthy," but stressed, "We would have to take action to keep the county whole … We are going to protect the county's interests, and in a way that will withstand legal action."

Supervisor David Blanchard has remained consistently concerned the county could end up in court, spend hundreds of thousands of dollars, and the project's potential tax revenue might never surface.

"This definitely concerns me," he said Wednesday. "I've said all along I would like the county to be taken out of the middle of this. It's the developer's responsibility. We (the county) have already invested resources into this project and this injunction threatens that investment … I'm not willing to invest any more. I have taken the stance throughout my term on the board that we should not spend any more of the county's money on the project. When does it stop? When do we say enough's enough?"

Blanchard he believes HNWD should be very concerned, "especially in the search for investors … I'm sure they have a (dollar) number out there, too, where they know they cannot go any farther … Investors would be very concerned about this."

Judge Titus' ruling— that species do not have to be harmed before the ESA is enforced, was critical, Jennings said. "We think this is significant," he told The Recorder.

One of the SCC's conditions of granting HNWD's state permit to operate is to "work closely with DGIF and the United States Department of Interior, Fish and Wildlife Service to ensure that threatened and endangered species are adequately protected."

Highland citizens involved in the case asked that HNWD's application either be denied, or that the developer be required to have an incidental take permit before construction starts.

Hearing examiner Skirpan noted that except for cost caps associated with monitoring and mitigating, "the sharpest difference between the parties … pertained to special provisions for endangered and threatened species."

He said, "Highland citizens contended that because the project site is within the documented migration route of the endangered Indiana bat and Virginia big-eared bat, and based on the presence of bald and golden eagles, Highland Wind should follow the advice of DGIF and U.S. Fish and Wildlife and file a habitat conservation plan."

But Skirpan said the record did not support requiring the plan or take permit, and the SCC agreed.

"We find that neither the risk to threatened or endangered species, nor Highland Wind's failure to enter into a habitat conservation plan and to seek an incidental take permit, make this project contrary to the public interest or otherwise necessitate denial of the application," said the SCC's final order.

No one involved in the case, the SCC noted, suggested HNWD was required by law to do that.

But Skirpan also agreed with DGIF that without them, HNWD "risks costly shutdowns and penalties." He said HNWD's failure to obtain them "is likely to make it more difficult to finance the project. Highland Wind apparently has chosen to accept the business risks attendant to not entering into a habitat conservation plan and not seeking an incidental take permit. This is a business risk voluntarily assumed by Highland Wind, which may impact the viability of the project."

The commission said, "We do not find, however, that the statutory criteria applicable to this proceeding requires us to order Highland Wind not to undertake the financial and operating risks associated with eschewing (the plan and permit)."

In its final order, the SCC said, "We have considered the positive environmental attributes asserted by the applicant. Such attributes, however, even if verifiable, do not alter the significant risk to bats and birds that will result from this project."

HNWD did not reply to questions from The Recorder this week, but its spokesman, Frank Maisano, issued a statement on his email blog following the court's ruling, calling it a "huge roadblock" for Beech Ridge and wind projects nationwide.

"This decision could pose major problems for projects that have been viciously and endlessly attacked by opponents using a

kitchen sink' approach," he wrote. "While not every project has the same issues related to potential endangered species, surely opponents will not be held back after this success."

Even if the USFWS expedites a permit application, Maisano said, the process "could entail 1-3 years and several million dollars to obtain a take permit. With at least four projects expected to begin construction next spring, this decision could have a chilling impact on getting new projects moving to meet the incredible demand for clean energy."

Invenergy has indicated it will apply for a federal permit. It also has the right to appeal Titus' decision in the Fourth Circuit.

As for Highland, Jennings said, "Logically, if I were the county, it would be a lot cheaper to require a known standard (take permit) than have a judge force the issue … This (decision) demonstrates that an incidental take permit ought to be procured."