Court halts West Virginia wind farm to guard endangered bat

By Maria Glod
Washington Post Staff Writer
Thursday, December 10, 2009

In a rare green vs. green court case, a federal judge in Maryland has halted expansion of a West Virginia wind farm, saying its massive turbines would kill endangered Indiana bats.

U.S. District Judge Roger W. Titus ruled that Chicago-based Invenergy can complete 40 windmills it has begun to install on an Appalachian ridge in Greenbrier County. But he said the company cannot move forward on the $300 million project -- slated to have 122 turbines along a 23-mile stretch -- without a special permit from the U.S. Fish and Wildlife Service.

"Like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project," Titus wrote in a 74-page opinion. "The development of wind energy can and should be encouraged, but wind turbines must be good neighbors."

The lawsuit in Greenbelt is the first court challenge to wind power under the Endangered Species Act, but as wind and solar farms rapidly expand nationwide, similar battles are playing out. Officials and environmentalists are working to find a balance between the benefits of clean energy and the impact on birds, bats and even the water supply.

David Cowan, 72, a longtime caver who fought to stop the project, said the ruling is a victory for the Indiana bat, a brownish-gray creature that weighs about as much as three pennies and, wings outstretched, measures about eight inches. A 2005 estimate concluded that there were 457,000 of them, half as many as in 1967, when they were first listed as endangered. Local populations hibernate in limestone caves within miles of the wind farm.

"I think this is going to make the wind-power people realize that just picking a place that has the right amount of wind isn't all that needs to be looked at," Cowan said.

The court ruled that if it wants to complete the project, Invenergy must seek a federal "incidental take permit," which sets out conditions to mitigate possible harm to an endangered species. The permit, for instance, could restrict the times turbines operate to avoid the bat migration season, bar turbines in the most sensitive areas or require the company to take other steps to protect the bat population.

Until a permit is granted, Titus said, the 40 turbines nearing completion in the first stage of building can operate only in winter, when the bats are hibernating.

Joseph Condo, Invenergy vice president and general counsel, said Invenergy will apply for the permit. He said the completed project would provide power to an estimated 50,000 homes.

"Invenergy continues to be committed to the Beech Ridge project and bringing clean renewable energy to West Virginia," Condo said. "We are very optimistic that the permit will be granted and the project can reach its full potential."

Cowan and other plaintiffs, including the D.C.-based Animal Welfare Institute, support wind power as one way to mitigate climate change. But they say the harm done to the Indiana bat would outweigh the benefits in this instance. The bats, they say, are likely to fly near the turbines in the fall as they migrate to caves from forests, where they spend spring and summer.

Turbines in other locations have killed tens of thousands of bats. Some strike blades. Others die from a condition known as barotrauma, similar to the bends that afflict divers. It occurs when the moving blades create low-pressure zones that cause the bats' tiny lungs to hemorrhage. Scientists and the industry are seeking ways to lessen the number of bats killed, including stopping the turbines at certain times or using sounds to deter the bats.

Invenergy had argued that there is no sign that Indiana bats fly near the ridge. When a consultant put up nets at or near the site in summer 2005 and 2006 to search for bats, no Indiana bats were captured. The company also stressed that there is no confirmed killing of an Indiana bat at any wind farm nationwide.

Eric R. Glitzenstein, an attorney for the plaintiffs, said the lawsuit makes the case for greater federal government oversight of the fast-growing industry that produces wind and solar power. Although coal and nuclear power are regulated, he said, new renewable sources of power are not subject to the same scrutiny.

"This sends an important message that renewable energy is not necessarily green energy," Glitzenstein said. "We should not be creating new ecological crises by addressing existing ones. All energy sources have potential benefits, but they also have potential risks."

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