Indiana Bat ‘Bites Back’ at BigWind in Ohio

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Good News! The United States Court of Appeals in the District of Columbia issued its ruling on Friday in the Union Neighbors United suit against the US Department of the Interior. In its suit, UNU challenged the issue of a permit to EverPower for the purpose of killing the endangered Indiana Bat at the Buckeye Wind project. UNU argued that the US Fish and Wildlife Service failed to comply with its obligations under the National Environmental Procedures Act (“NEPA”) and failed to make required findings under the Endangered Species Act (“ESA”) The Court ruled in favor of UNU on the NEPA claim but found in favor of USFWS on the ESA claim despite noting that UNU’s argument against it was plausible. The partial finding in favor of USFWS was made because the agency was given “discretion” in how it interprets its own rules. UNU is still waiting for the analysis of the decision but we have attached a copy of the ruling which is very readable.

Under NEPA, EverPower was required to propose a reasonable range of alternatives to avoid or minimize killing the Indiana Bat. EverPower proposed three alternatives relating to the “cut-in” speed of the wind turbines. The higher the wind speed, the less likely it is that bats will be flying. A cut-in speed of 6.5 mph has been found to be the most protective. In its findings in favor of UNU, the Court noted that:

“The Service considered the following alternatives: Buckeye’s plan incorporating variable cut-in speeds of up to 6.0 m/s at night from April to October; the No Action Alternative; the Minimal Alternative with a cut-in speed of 5.0 m/s for the first six hours after sunset from August to October; and the Max Alternative, which would have turned off the turbines at night from April to October. Viewing the range of alternatives through the lens of its stated goals, the Service failed to consider a reasonable range of alternatives because it did not consider any reasonable alternative that would be economically feasible while taking fewer bats than Buckeye’s proposal.”

In other words, two of the three proposed alternatives were not reasonable and EverPower should have been required to propose additional alternatives. We are guessing that this means EverPower will have to go back to the drawing board on their bat take plan and the status of their certification from the Ohio Power Siting Board would not be valid until they have an approved plan from USFWS. This could cause a delay in the progress of the Buckeye Wind project.

With respect to the Endangered Species Act, UNU argued that the USFWS failed to fulfill this requirement in three ways: 1) failing to ensure that Buckeye would, to the maximum extent practicable, minimize the number of individual Indiana bats that would be taken; 2) applying an inappropriate standard to determine what constitutes the “maximum extent practicable”; and 3) failing to find that a reduced-impact alternative was impracticable. USFWS argued that the test should be on whether Buckeye Wind will lead to the decline of the entire species while UNU argued that the test should be on the number of individual bats killed. The Court allowed the argument from USFWS that EverPower’s purchase of land in southern Ohio would offset the number of bats killed in Champaign County and that would protect the species from extinction. We find that argument to be unreasonable in that the reduction of individual bats in Champaign County will harm farmers. We think the value of the bats being saved should be considered in the context of where that value resides. Why else take such measures to protect the species? We hope to hear more on this subject from our intrepid lawyers at the Conservation Law Center….

picture from fws.gov

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