A Maryland federal district court ordered, reluctantly, that construction halt and operation cease (from April 1 to November 15) at Invenergy’s Beech Ridge Project in Greenbrier County, West Virginia, until such time that Invenergy obtain an Incidental Take Permit pursuant to the federal Endangered Species Act.
While the opinion’s conclusion is offered below, the whole case is worth reading. Message to developers: carefully dot all “I”s and cross all “T”s in the permitting process.
As noted at the outset, this is a case about bats, wind turbines, and two federal policies, one favoring the protection of endangered species, and the other encouraging development of renewable energy resources. Congress, in enacting the ESA, has unequivocally stated that endangered species must be afforded the highest priority, and the FWS long ago designated the Indiana bat as an endangered species. By the same token, Congress has strongly encouraged the development of clean, renewable energy, including wind energy.[FN: See, e.g., Wind Energy Research and Development Act of 2009, H.R. 3165, 111th Cong. (2009) (“To provide for a program of wind energy research, development, and demonstration, and for other purposes.”); Press Release, U.S. Dep’t of Energy, Secretary Chu Announces $93 Million from Recovery Act to Support Wind Energy Projects (Apr. 29, 2009); President Barack Obama, Remarks at Trinity Structural Towers Manufacturing Plant, Newton, Iowa (Apr. 22, 2009) (announcing that “[m]y budget also invests $15 billion each year for 10 years to develop clean energy”); U.S. Dep’t of Energy, 20% Wind Energy by 2030: Increasing Wind Energy’s Contribution to U.S. Electricity Supply (July 2008).] It is uncontroverted that wind turbines kill or injure bats in large numbers, and the Court has concluded, in this case, that there is a virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana
bats in violation of Section 9 of the ESA.
The two vital federal policies at issue in this case are not necessarily in conflict. Indeed, the tragedy of this case is that Defendants 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
Sadly, Defendants’ environmental consultant, Russ Rommé, viewed formal
communications from the FWS through rose-colored glasses and simply disregarded what he was told repeatedly. Indeed, the Court finds Rommé’s testimony to be extremely troubling. If the Court were to accept his testimony, it would have to reach one or both of two equally untenable conclusions.
First, Rommé’s description of his communications with Johnson-Hughes is that she effectively countermanded important advice given to BHE by her supervisor, Chapman. The Court rejects Rommé’s myopic view of the communications that he received from the FWS. Johnson-Hughes did not testify, and there were no written communications from her stating that Rommé could disregard vital portions of the letters received from Chapman. Indeed, in one of Rommé’s numerous “contact reports” he documented a conversation with Johnson-Hughes on April 6, 2006, in which he
acknowledged that the FWS had “focused on the critical nature of early screening of potential wind development sites.” BHE Contact Report, Telephone Call Between Russ Rommé, BHE Envtl., Inc, and Christy Johnson-Hughes, U.S. Fish and Wildlife Serv. (Apr. 6, 2006) (Defs.’ Ex. 82). And, in a tragically prophetic comment, he attributed to the FWS a statement that “[t]here are indications wind developers are still not doing this work, and getting themselves [into] trouble because of it.” Id.
While Rommé professed a belief that he could ignore Chapman’s letters based
upon Johnson-Hughes’ allegedly contrary assurances, the lawyer for Defendants considered the March 7, 2006 letter from the FWS of sufficient importance that he filed a formal response to the letter with the WV PSC. In his response, Defendants’ attorney acknowledged that FWS’s recommendations included three years of seasonal vertical radar surveys, seasonal acoustic surveys, seasonal thermal imaging surveys, and surveys
to detect Indiana bats and Virginia big-eared bats emerging from local caves during spring, as well as an additional two years of mist-netting surveys. Letter from Lee F. Feinberg, Spilman Thomas & Battle, PLLC, to Sandra Squire, Executive Secretary, W. Va. Pub. Serv. Comm’n, at 2 (Apr. 3, 2006) (Defs.’ Ex. 79) (attaching Beech Ridge Energy’s response to the March 7, 2006 letter from the FWS). The principal reason cited by Defendants’ attorney for opposing these recommendations was the financial burden
on Defendants and delaying construction of the project, not a disagreement as to the merits of the recommended actions. Id.
Had Rommé listened more carefully to what he was told repeatedly, Defendants would not be in the unfortunate situation in which they now find themselves. It is clear that Rommé adopted a “minimalist” approach to his responsibilities and that he “neither strained very hard nor looked very far” in his effort to find Indiana bats. Montgomery County v. Leizman, 303 A.2d 374, 380 (Md. 1973). Searching for bats near proposed wind turbine locations for one year instead of three,[FN: 54 BHE conducted a mist-net survey near proposed wind turbine locations in July 2005 and a mist-net survey along the transmission line in June 2006.] looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment.
Second, acceptance of Rommé’s testimony would lead one to conclude that there are serious personnel management issues within the FWS, including subordinates routinely countermanding instructions given by superiors. The Court is skeptical of his testimony, but to the extent that there is any truth to Rommé’s characterizations of his conversations with Johnson-Hughes, the FWS should carefully review its procedures to be certain that subordinates do not undermine official communications. The only thing
that is clear from the record is that the responses of the FWS to some of the
communications from Defendants were relatively slow. See, e.g., Letter from Thomas R. Chapman, Field Supervisor, U.S. Fish and Wildlife Serv., W. Va. Field Office, to Russ Rommé, Director, BHE Envtl., Inc. (Mar. 7, 2006) (Pls.’ Ex. 97) (stating that the March 7, 2006 letter was in response to a letter from Rommé dated July 7, 2005).
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. 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.
The development of wind energy can and should be encouraged, but wind
turbines must be good neighbors. Accordingly, the Court will, albeit reluctantly, grant injunctive relief as discussed above.[FN: The Court wishes to express its sincere appreciation to Nicolas Mitchell, his law clerk, for extraordinary and invaluable assistance in reviewing the massive record in this case, conducting extensive research, and initial drafting of this opinion.]