Friday, December 11, 2009

Animal Welfare Institute v. Beech Ridge Energy, LLC (Maryland U.S.D.C.)

Filed: December 8, 2009
Opinion by Judge Roger R. Titus

Held: Defendants were enjoined from constructing new wind turbines and operating a wind farm during certain months because the project would kill endangered bats in violation of the Endangered Species Act (“ESA”) and the Defendants failed to obtain an "incidental taking permit."

Facts: “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.”

The Defendants ignored evidence that endangered bats are present in the area of the wind farm project and ignored requests by federal officials to conduct more extensive surveys as to the presence of these bats. The Defendants failed to obtain an incidental taking permit, that would have permitted the construction in spite of the risk to the wildlife.

Analysis: The ESA makes it unlawful to take any endangered species within the United States. The definition of take includes “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

Anyone who knowingly takes an endangered species in violation of the ESA is subject to significant civil and criminal penalties. In order to provide a safe harbor from these penalties, the ESA includes an “incidental taking permit” process that allows a person or other entity to obtain a permit to lawfully take an endangered species without fear of incurring penalties.

The Court found that there is a virtual certainty that construction and operation of the wind farm will take endangered Indiana bats in violation of the ESA. The only avenue available to the Defendants to continue construction and regular operation of the wind farm is to obtain an incidental taking permit.

The full opinion is available in PDF.

No comments:

Post a Comment