Bat ruling casts shadow on MD wind projects?
A Maryland federal court ruling last week put a severe crimp in an industrial-scale wind project in West Virginia. Could it do the same for smaller projects planned in western Maryland?
U.S. District Court Judge Roger W. Titus found it "a virtual certainty" that the 122-turbine Beech Ridge facility being built along 23 miles of mountain ridges in Greenbrier County, W.Va., would violate the federal Endangered Species Act by killing Indiana bats. Construction is already under way on the $300 million, 186-megawatt project being developed by Invenergy, a Chicago-based company said to be one of the five largest wind developers in the country.
The little brown bats spend their summers eating insects in forests and migrate in fall to hibernate through the winter in caves. Found in 20 eastern states, including West Virginia and Maryland, they have continued to decline in number despite their longstanding legally protected status, the judge pointed out. After a protracted and losing battle in West Virginia to affect the wind project, opponents turned to the federal court.
After a trial in October, Judge Titus last week found that although no Indiana bats were reported within five miles of the project, there was evidence that there were caves where they hibernate within 10 miles. He concluded after reviewing testimony from biologists on both sides that "like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded or killed" by the massive, slowly spinning turbines, either by colliding with them or by air pressure changes as the blades rotate, which can damage bats' lungs and eardrums, impairing their ability to fly and navigate.
The judge declared that 40 turbines now under construction can be completed, but no more could go up until the developer obtains an "incidental take" permit from the U.S. Fish and Wildlife Service. Such permits allow projects to kill endangered species, but to get them applicants must agree to take steps to minimize and mitigate the harm their activities will do to the protected animals.
"The development of wind energy can and should be encouraged," Titus concluded, "but wind turbines must be good neighbors." To read the full 76-page opinion, go here.
Invenergy issued a statement after the Dec. 8 ruling saying it would seek such a permit, according to The New York Times. In the meantime the judge said the turbines already up could only be operated in winter, when the bats are likely to be hibernating.
Could the ruling prompt wind opponents to raise similar objections about projects planned in Garrett and Allegany counties? They've already gained state approval under a streamlined regulatory process that lawmakers approved two years ago at the behest of wind developers, which limits state review of environmental and safety issues around such projects.
A map included in the judge's opinion - from the draft recovery plan for the Indiana bat prepared by the U.S. Fish and Wildlife Service - shows the endangered bats have been found in summer and winter in Garrett and Washington counties, in Carroll County in summer and in Allegany County in winter. (Page 8 in the opinion, here)
Frank Maisano, a lobbyist for wind developers, thinks the ruling could pose "major problems" for other projects. He predicted last week in an email that getting the needed permits from the fish and wildlife service could take one to three years and cost several million dollars.
"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," Maisano wrote. Two of those are proposed on Backbone Mountain near Oakland in Garrett County. Constellation Energy recently announced plans to take over development of one, while the other would be built by Synergics of Annapolis.
Opponents no doubt hope the ruling slows the rush to harness the wind. They have long argued that industrial-scale wind facilities, especially on Allegheny mountain ridges, pose significant threats to bats and birds, both with the spinning of their massive blades and in the destruction of forest habitat for turbines and transmission lines. They also argue that wind turbines are a poor bet for clean energy, compared with nuclear power, because they rely on a variable and even intermittent power source - the wind. A 2007 study by the National Research Council called for further studies of the environmental and human impacts of wind facilities.
Will opponents, who've been effectively neutralized by Maryland's streamlined review of projects under 70 megawatts, turn now to federal courts? That may depend on the facts surrounding each project, and whether any federally protected species have been reported in similar proximity. Or will developers find it prudent to hold up and apply for permits now, in a bid to head off litigation and possible legal roadblocks in mid-construction?
(2008 Baltimore Sun photo by John Makely, of another West Virginia wind facility)
Comments
This is the first federal court ruling in the country finding a wind energy project in violation of federal environmental law. Clearly, the decision is an embarrassment to Synergics President and O'Malley friend Wayne Rogers who argued that there was no need for environmental review in Maryland.
One could argue that the judge may have used such strong language to send a message to the Governor and lawmakers in his home state.
By ignoring the implications of federal law for Maryland, the Governor and Department of Natural Resources may be at risk for failing to implement and enforce the law
Posted by: John Bambacus | December 14, 2009 1:11 PM
It's great to read the good coverage in The Sun's "environmental" blog today of Judge Titus' ruling in favor of endangered bats over industrial wind energy development in WV. However, where is the same level of coverage regarding the local wind energy development threat to threatened and endangered (state-listed) species - which MD DNR experts determined would be harmed by construction/operation of Synergics' industrial wind energy project here in MD?
The application to build Synergics’ wind project was approved last month by the MD Public Service, which claimed it was not authorized to consider environmental or even public safety impacts in its decision process for approving wind energy projects. However, this project’s expected construction and operation represents a clear violation of Maryland's Nongame and Endangered Species Conservation Act.
This sad situation marks the first time that a MD Governor and Secretary of Natural Resources consciously have chosen to shirk or ignore their legislatively mandated responsibilities to protect an endangered species from being harmed or even eradicated from our State by a development project. Worse, the Governor has recently announced that he intends to sign a contract which forces State Agencies and University of MD system to buy 20% of the electricity generated by the windplant which Synergics intends to build atop habitat of state threatened and endangered species.
Wind developers who seek to build their industrial facilities in Maryland have NEVER conducted any credible studies for bats - so there is no data available to help determine whether the endangered Indiana Bat may be present along ridgetop locations slated for wind energy development. Virtually no other federally threatened or endangered species of wildlife is likely to be found along MD ridgetops.
If wind energy developers are exempted from having to comply with state environmental laws, will not other friends of this or future Governor seek similar protective treatment – especially if they “greenwash” or otherwise cloak their development scheme as being a means to address a socially desirable need or concern?
Posted by: Dan B | December 14, 2009 4:45 PM
Good news -BUT Judge Titus still says
"wind energy can and should be encouraged" -- Good grief , how naive and gullible can he be ?
Posted by: ruffie | December 14, 2009 10:27 PM
What is more important? Conserving fossil fuels and finding alternative sources of energy or protecting a BAT? This is getting ridiculous. Tell me what the bat contributes to the ecology which has farther reaching consequences than our usage of wind energy does?
Posted by: Jim | December 14, 2009 11:19 PM
Jim essentially promotes an "ends justify the means" rationale in arguing that endangered species and perhaps public welfare ought to be considered "collateral damage" and thus should be trumped by the need to foster wind energy development.
He poses a false dichotomy which pits environmental protection against what he deems as the overarching benefits of industrial wind energy - "conserving fossil fuels and finding alternative sources of energy".
But it's not an either/or situation because there is an abundance (over 30,000 MW) of renewable electricity projects planned for construction elsewhere in our grid region (PJM), and over 175,000 MW of wind energy projects currently are under study for interconnection to our nation’s electric grid. Plus, any specific wind energy project will offset a relatively tiny share of our demand for fossil fuels. The issue is whether these industrial facilities ought to be appropriately sited.
FYI, electricity generation represents less than half of the usable energy we extract from fossil fuels, yet wind turbines ONLY produce electricity - and they perform relatively poorly at this task. A 50 MW windplant like the one Synergics hopes to build in western MD would annually produce less than 1% of the "alternative energy" that would be generated by the planned addition of the 1600 MW nuclear reactor at the existing power plant at Calvert Cliffs.
We have an abundance of options which could be tapped to reduce our use of fossil fuels, but it appears we have a lack of will and commitment to ensure that pursuit of these options will be cost effective and least impactful.
Posted by: Dan B | December 15, 2009 9:28 AM
Titus did what the law requires. Despite his uninformed but unabashed wind boosterism, he had no choice but to comply. He handed the case off to the federal government, instructing the limited liability wind company to seek an incidental takings permit from Fish and Wildlife, which that agency will undoubtedly issue soon, in the spirit of its new wind energy regulations.
All of this obscures the real issue, which is that wind is one of the dumbest modern energy ideas imaginable, completely unable to affect our dependence on foreign sources of energy, our desire to reduce greenhouse gas emissions or replace fossil fuel generating plants, particularly coal, and especially to rebuild our aging electricity infrastructure. All wind technology can do is provide sporadic energy in a highly desultory fashion, not generate modern power performance. As such, it is an erratic substitute, in the game only because of government subsidies that con people into believing pigs can fly.
The gush of pretentiousness permeates far too much of our culture already, with its penchant for wonkish wizards, fantasy sports, and virtual reality spectacle. Why not therefore, as a Danish wind company asks, Believe in the Wind, clapping one's hands to rescue this daffy technology from the crises of unbelief?
Posted by: Jon Boone | December 16, 2009 1:34 PM