Merit briefs were filed with the Ohio Supreme Court in the Buckeye Wind case. Union Neighbors United filed an appeal of the Ohio Power Siting Board’s extension of the certificate approving Phase I of the project. UNU asserted that extensions require filing an amendment to the original certificate. In this and seemingly every other case, the OPSB approved the extension by a motion. This enabled EverPower to avoid a hearing and avoid the requirement that the new setback requirements measuring from property lines could be avoided. Last week both the OPSB and EverPower filed their briefs on the matter with the court.
In Washington, the federal District Court heard arguments in UNU’s case against the Department of the Interior and US Fish and Wildlife Service for failing to properly consider alternative means by which to protect against killing bats. The case made headlines in the media because two of the three judges on the panel are possible Obama nominees to the US Supreme Court to fill the vacancy left by the death of Justice Scalia. The questioning by the judges appeared to indicate that they might be sympathetic with UNU’s arguments. The headline of the news story was “Possible Supreme Court pick slams Obama admin over bats”. With all the uproar over mosquitos that carry the Zika virus, perhaps saving bats is becoming more important.
US Fish and Wildlife got more backlash over its plans to give wind developers 30 year permits to kill threatened and endangered species. Previously, permits were issued for five years but USFWS extended that period to 30 years and a federal judge rejected it. USFWS has gone back to the drawing board to develop new rules for these permits….
Federal appeals court Judge Patricia Millett, whose name has been floated as a potential Supreme Court nominee, grilled an Obama administration attorney today over protections for endangered bats.
Millett, an Obama appointee to the U.S. Court of Appeals for the District of Columbia Circuit, criticized the Fish and Wildlife Service’s consideration of ways to minimize killing or harming the endangered Indiana bat species when the agency issued permits to an Ohio wind project.
The nonprofit group Union Neighbors United is challenging the agency’s permit authorizing the project to incidentally kill or harm about 5.2 Indiana bats per year, and no more than 26 Indiana bats over any five-year period or 130 Indiana bats over 25 years. FWS granted Buckeye Wind LLC’s application to build 100 turbines in Ohio, but Union Neighbors United says FWS failed to appropriately consider alternative ways to minimize adverse impacts to bats.
The wind project has been stalled amid challenges.
A lower court last year dismissed Union Neighbors United’s claims, finding that the FWS permit had been issued legally, prompting the group’s appeal to the D.C. Circuit.
Millett today questioned FWS’s methods, pressing the Justice Department lawyer representing FWS in oral arguments to explain whether the agency had in fact considered a “reasonable range” of alternatives to minimize the impact on the endangered bats…
If FWS saw one extreme option as too expensive, “doesn’t that mean you maybe need to throw in another option?” she asked….