Wind company, county officials threatened with lawsuit — again

Laurel Fork, the native trout stream in western Highland County, has been a central concern for those opposed to the site of Highland New Wind Development’s 38-megawatt wind facility. The stream holds Tier 2 and Tier 3 designations along certain sections, as approved by state agencies. It’s watershed is protected and used for educational purposes by landowners in the area, most of whom claim HNWD’s plans for an electric utility are likely to cause harm to its banks and waters. This week, the Goodall family’s Rifle Ridge Farm, adjoining the HNWD site, became one of several groups joining a potential lawsuit against HNWD for its failure to protect endangered species in the area also. (Photo courtesy Rick Webb) MONTEREY — Virginia’s first wind energy plant faces yet another hurdle.

Friday, a Washington, D.C.-based law firm sent Highland New Wind Development and the Highland supervisors a notice of intent to sue based on the Endangered Species Act if the developer fails to get a federal permit to protect two bat species near the proposed site of a 38-megawatt wind power facility.

This, says county supervisor Robin Sullenberger, raises the stakes.

A nationally renowned environmental law firm, Meyer Glitzenstein and Crystal, was hired to represent environmental groups and individuals concerned HNWD’s facility will harm Indiana bats and Virginia big-eared bats, both of which live and migrate on and near the project site on Allegheny Mountain in western Highland County.

The firm’s clients include the Animal Welfare Institute, a national non-profit group dedicated to reducing pain inflicted on animals; Highlanders for Responsible Development, Rifle Ridge Farm, a large tract below the site owned by the Goodall family; Rick Webb of vawind.org, Mustoe; and Carol Peterson and Rick Lambert, active bat and caving experts.

They contend HNWD’s 400-foot turbines will harm and/or kill the bats in violation of federal law. The ESA provides only limited exceptions to “the otherwise strict prohibition against the taking of an endangered species,” they said. Exceptions are only allowed when a developer obtains an Incidental Take Permit from the federal U.S. Fish and Wildlife Service, which allows “taking” listed species when those takings are “incidental to, and not the purpose of” carrying out a lawful activity.

MGC attorney Bill Eubanks said his firm chose to represent these clients because it felt the case was so strong. “As you can imagine, there have been a number of projects going in where people have contacted us with concerns, and we pick out the ones that, from our perspective, have the greatest potential for having wildlife impacts,” he told The Recorder Monday. “This one stood out. There are substantial consequences for wildlife from this project without an Incidental Take Permit.”

MGC successfully represented clients in a similar case against Invenergy last year, arguing its Beech Ridge wind facility in nearby Greenbrier County, W.Va., had the potential to harm Indiana bats, and the company should have an ITP.

“We think the facts are even stronger in this situation (HNWD’s project), based on the science on the ground,” Eubanks said. “It’s clear now that when you’re developing a project with impacts to federally listed bat species, you need to get (an ITP) prior to erecting turbines in their migration paths,” he said. “The ITP needs to be obtained … before construction, and the (Highland) supervisors should not extend HNWD a building permit until it obtains an ITP.”

Sullenberger said Tuesday that supervisors “certainly have to give credence” to this potential lawsuit. “The participants are feeling empowered by the Beech Ridge case, and it did set a precedent. The involvement of this D.C. law firm ratchets things up, and the participants clearly have more confidence. I’m going to have to review this with legal counsel and see where we go from here,” he said.

The question before county supervisors, Sullenberger added, has always been where their responsibility lies, and “whether we have the authority to take action” on getting HNWD to obtain the federal permit.

He said he asked county building official Jim Whitelaw Monday whether there’s been any movement recently on HNWD’s construction, and Whitelaw told him nothing was happening yet.

The Animal Welfare Institute, Eubanks said, is a reputable national group, and his clients want to play a collaborative role in developing the HNWD project’s habitat conservation plan — a key piece of an ITP application. If HNWD gets an ITP, and his clients are afforded an opportunity to participate, “it cuts the chances of (HNWD) being sued after an ITP is granted,” he said, noting operational constraints and mitigation efforts would help reduce the impact to the bat species in the area. That, in turn, would have a “negligible impact on the company’s profits,” he explained. “In the best of all possible worlds, this will not go to litigation … Our firm, and our clients, especially the Animal Welfare Institute, are looking to protect wildlife; they’re not trying to stop the project … just find the least environmentally dangerous way to proceed.”

Earlier this year, HNWD attorney John Flora told county supervisors the company intends to get an ITP. Sullenberger this week says he has not heard anything further from HNWD on the matter, but guesses HNWD is planning to develop or in the middle of developing the conservation plan.

Eubanks says subsequent to HNWD’s statement it would seek the permit, HNWD principals Mac and Tal McBride, and their spokesman Frank Maisaon, made public statements indicating HNWD no longer plans to get one. “Even when they’ve said they intend to get an ITP, they say, ‘We’ll get it when we get around to it,’ and that shows a critical misunderstanding of the Endangered Species Act,” Eubanks said.

“The wildlife risk is pretty clear,” Eubanks continued. He said the county’s response to earlier notices of intent to sue under the ESA, that supervisors don’t have the authority to make HNWD get an ITP, show a “misunderstanding in their role of authorizing incidental take; the county is a third party, a government entity, and they are also liable.”

The idea behind the law is to protect species before any are harmed or killed, which is the conclusion reached by U.S. Circuit Court Judge Roger Titus in the Beech Ridge case. “That’s the right interpretation of the ESA,” Eubanks said. “There are, as Judge Titus said, two competing federal policies, but neither is above the other. There is a way to harmonize them,” he added.

In his May 14 letter to HNWD and supervisors, Eubanks noted the Indiana bat is “one of the most imperiled land mammals in the world.” He cites research by Peterson and Lambert describing how Indiana bats migrate, hibernate and reproduce. The species has been on the endangered species list since 1967, even before the ESA was enacted. “Even after the Indiana bat was listed, its rangewide population declined precipitously,” Eubanks’ letter states, dropping about 57 percent from 1965 to 2001, according to the USFWS. “Exacerbating the traditional threats to the species,” he said, “the FWS has recognized new grave threats to the survival and recovery of the Indiana bat, including collisions with the wind-energy turbines that are being rapidly constructed in the Appalachians.”

It’s not just that bats are killed by colliding with turbines. The USFWS has also studied another way they are killed — internal bleeding from “barotrauma,” which is tissue damage caused by rapid or excessive pressure changes. The study cited by Eubanks concludes that more than 90 percent of the bats die this way. “This new evidence broadens the scope of harm previously thought to be posed to bats, including Indiana bats, near wind turbines since deaths from collisions will be compounded by the deaths caused by low-pressure zones near turbines,” he wrote.

Hellhole Cave, which contains about 12,000 Indiana bats, is only 26 miles from the proposed HNWD project and has been designated as critical habitat by the USFWS, Eubanks said.

Another threat is white-nose syndrome, which has been found in four of the five counties adjacent to Highland, and has been reported though not yet confirmed in Highland. The disease has killed more than a million hibernating bats already, and Eubanks reports that Bat Conservation International calls this “the most precipitous decline of North American wildlife in the past century.”

The Virginia big-eared bat, he said, is in even more trouble. This species is restricted to relatively small areas. “Indeed, the species is known to reside in only a small number of caves in Virginia, West Virginia, Kentucky, and North Carolina,” Eubanks explained in the notice. “In fact, more than half of the global population is found in West Virginia, with the largest known maternity colony and the largest hibernating concentration in the world found in that state near its border with Highland County.”

Virginia big-eared bats were listed as endangered in 1979, and only about 12,000 of them remain, according to USFWS data. “The population decline is primarily attributed to human disturbance and habitat loss,” Eubanks said. “However, the Service has expressed serious concerns about the effect of wind power on this species,” saying regulations on wind power may not be adequate to protect the bats. Hellhole Cave has about 5,000 Virginia big-eared bats — nearly half the remaining population. Eubanks said that in addition to West Virginia caves, “members of the species use many Virginia caves that surround the project site, including caves as close as three miles from the project site, and at least eight caves within 20 miles in which either cavers or (Department of Game and Inland Fisheries) biologists have documented Virginia big-eared bats.”

Eubanks said the USFWS expressed concerns about these species, and the potential effect of HNWD’s project, as early as October 2003. The Service had recommended pre-construction studies be conducted by qualified consultants. In September 2005, the Service sent HNWD a letter explaining the listed bats had been found in and around the proposed tower site, and told the company its turbines carried a substantial risk for harming the bats; USFWS urged HNWD to obtain an Incidental Take Permit.

HNWD did not apply for an ITP at that time. It did conduct one pre-construction study that lasted two months, using radar and night-vision technology during a fall migration period. Eubanks contends those technologies are not reliable for differentiating bats from birds, but that “even in the absence of bat-specific data, the study obtained results of very high migratory passage rates, ranging from 3.4 to 24.7 migrants per turbine per day.” Those study results were published in January 2006.

Eubanks cited similar concerns for the endangered bats expressed twice by the state DGIF in 2006. In March 2006, USFWS once again stated its concerns to HNWD and again urged the company to get an ITP. Expert testimony provided during HNWD’s application for a state permit to build its facility bolstered the previous comments made by the agencies, the notice explains.

Eubanks said Monday that it’s now clear, in this range, “that these two bats are going to experience a taking” from the HNWD project. There are other endangered species in the project area, too, he said, including the Northern flying squirrel, but terrestrial species have a more limited range and even if their presence is established, it would be more difficult to prove they or their habitats would be harmed.

“At this time,” Eubanks wrote, “despite consistent recommendations by federal and state wildlife agencies and independent bat experts, HNWD has failed to conduct any bat-specific surveys … Moreover, HNWD has not heeded other recommendations for protecting the region’s imperiled wildlife, including failing to apply for an ITP … Nevertheless, based on its public statements, the company plans to begin construction of the facility in 2010.”

MGC successfully represented a coalition of environmentalists and individuals last year in its precedent-setting case against Invenergy. The Animal Welfare Institute was a party to that case as well. Judge Titus concluded the Beech Ridge turbines would, with “virtual certainty,” harm Indiana bats, and found the developer was likely to violate the ESA if it finished the project without an ITP. Titus ruled no more turbines could be erected until the company got one. Titus recognized two federal policies — one protecting endangered species and the other favoring renewable energy — were in play. But, Titus said, “The two vital federal policies at issue in this case are not necessarily in conflict. Indeed, the tragedy of this case is that (Beech Ridge) disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species.”

HNWD’s project, the firm contends, “will almost certainly result in the incidental taking of endangered Indiana bats and Virginia endangered – an action which has not been permitted by the FWS through the section 10 ITP process. Given the presence of multiple hibernacula within migratory distance of the project site including the most important Indiana bat and Virginia big-eared bat hibernaculum in the region (Hellhole Cave), the migratory distances of the listed species, the availability of potential roost trees and edge habitat on and surrounding the project site, the unprecedented numbers of bats killed at nearby wind facilities via turbine collisions and barotrauma, and the unusually high numbers of migratory birds and bats found in the fall 2005 radar study conducted by HNWD’s consultant, it is inevitable that the Highland wind project will result in the incidental taking of Indiana bats and Virginia big-eared bats by killing, injuring, and/or wounding members of those species via turbine collision and barotraumas.”

The turbines would also harm and harass the species, which is also prohibited under the ESA, the firm said.

“HNWD has done virtually nothing to present evidence suggesting that the predicted take of endangered species will not occur here. Rather than implementing the various surveys known to identify bats by species to determine temporal and spatial use of the project site (acoustic, mist netting, etc.), HNWD has refused to conduct such surveys and has instead relied merely on a single radar study that is insufficient for determining species use of the project site. Indeed, HNWD’s failure to engage in any of the surveys recommended by the Service and VDGIF to determine the level of risk to listed bat species further compounds that risk posed to those species with takes almost certain to occur. This type of conduct was one of the primary reasons that the court found Beech Ridge Energy’s bat surveys deficient,” Eubanks wrote.

The notice insists that HNWD can only proceed lawfully if it obtains the federal permit before constructing and operating its wind plant. It contends HNWD has made “publicly inconsistent statements, first agreeing to obtain an ITP but only after construction and operation have commended, and yet subsequently stating that no ITP would be obtained because one is not needed.”

The ESA, the letter explains, explicitly prohibits HNWD from “making any irreversible or irretrievable commitment of resources … which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.”

Therefore, Eubanks argues, “any construction activity, such as tree cutting, turbine site grading, or other habitat modification in the Indiana bat or the Virginia big-eared bat range, that in any way forecloses a potential wildlife avoidance or mitigation alternative for the Service to consider in rendering a final decision on the ITP, is a separate and distinct violation of the ESA.”

But HNWD is not the only party that can be held responsible, Eubanks argues. The Highland County Board of Supervisors is also liable under the ESA for authorizing “any activity that is likely to result in takes,” the notice claims, explaining courts have long held municipal and other government bodies liable for authorizing conduct that results or is likely to result in the taking of endangered species. “Here, the Highland wind project cannot be constructed and operated without first obtaining a building permit for turbine construction from the (supervisors) – meaning that the grant of such a permit authorizing HNWD’s unlawful conduct to proceed in the absence of an ITP would be both a but-for and proximate cause of the unauthorized takings of endangered species,” Eubanks argues. “Particularly in light of the virtually certain risk of take with regard to the region’s imperiled wildlife, the HCBOS should refrain from granting HNWD a building permit until and unless HNWD satisfies all obligations under the ESA by applying for, and obtaining, an ITP. Otherwise, by authorizing the unlawful takes of Indiana and Virginia big-eared bats, the HCBOS will be liable for the actions of HNWD that HCBOS permitted, i.e., the construction and operation of a commercial wind project and the consequent illegal conduct resulting from that project in the absence of an ITP.”

The only way for HNWD to ensure it will not break the law in taking these species, and that it will avoid enforcement actions from the USFWS and a citizen lawsuit, is to apply for an ITP, the notice states; and, the only way county supervisors can avoid ESA liability is by not granting the company a building permit until HNWD gets the permit.

“If we do not hear from you,” the notice tells HNWD and supervisors, “we will assume that no changes will be made and will consider all available avenues, including litigation, to conserve the (endangered bats) in accordance with the requirements of the Endangered Species Act.”

Because HNWD and supervisors had already been served with a notice of intent to sue by Woods Rogers of Roanoke, representing similar clients, Eubanks said it might not be necessary to wait the standard 60 days before filing a lawsuit on behalf of his clients. “Typically, under the ESA, you wait 60 days to bring a suit,” he explained. “That gives (defendants) 60 days to decide whether they will comply with the law, and it gives the Secretary of the Interior time to start environmental actions. But this is an interesting situation. Under our reading of it, they already have prior notice … the Secretary of the Interior was on notice five years ago, and we’re not raising anything new. If we don’t hear from them (developer or supervisors) in a timely manner, I think we can bring suit in less than 60 days.”

In addition to HNWD and county supervisors, the notice was copied to the USFWS, the state DGIF, and Secretary of the Interior Ken Salazar.

Eubanks said he doesn’t think Highland County would grant HNWD any building permits before this notice is considered. “I imagine (county attorney) Melissa Dowd won’t summarily allow that considering the controversy surrounding this project,” Eubanks said, “especially now that these clients are bringing in a firm of our prominence. The county won’t rubber-stamp (a building permit) that quickly.”

To date, the USFWS has never denied an ITP for a wind energy facility, and Eubanks said he doesn’t believe the agency would deny one for HNWD. “The service doesn’t always deny ITPs but it does happen,” he said. “Since wind energy has been developed, the service has not ever denied an ITP for a wind plant.” Only one ITP for a wind developer has been granted so far, for a project in Hawaii, and there are about four others currently in the application process, including Beech Ridge.

In a settlement with Beech Ridge, there are stipulations built in that effectively allow Eubanks’ clients in that case to work with the USFWS and developer on plans for construction, openly, “not behind closed doors,” he said. “We can weigh in and respond, which is in everyone’s best interest.”

So far, so good. “There are some disagreements, but generally, the fundamental issues, so far it’s working well,” Eubanks said.