GREENBELT, Md. -– Wind turbines can kill a few Indiana bats without endangering the species but the owners must ask for permission first, U.S. District Judge Roger Titus ruled on Dec. 8.
Titus blocked construction of 82 turbines in Greenbrier County, W.Va., and restricted 40 turbines already under construction to seasonal operation.
He advised developer Invenergy Wind and subsidiary Beech Ridge Energy to ask the U.S. Fish and Wildlife Service for an "incidental take permit" under the Endangered Species Act.
He wrote that he can't order them to apply but won't let them proceed if they don't.
He slapped them for their conduct, and he slapped consultant BHE Environmental harder.
He declared BHE's Russ Romme the least credible witness at a trial he conducted in October.
"Russ Romme viewed formal communications from the FWS through rose colored glasses and simply disregarded what he was told repeatedly," he wrote.
"Had Romme listened more carefully to what he was told repeatedly, defendants would not be in the unfortunate situation in which they now find themselves," he wrote.
No one has found a dead Indiana bat near a wind turbine, but that didn't surprise Titus. He wrote that studies are few, searches are inefficient, and Indiana bats are rare.
He wrote that Invenergy left him no choice but to award an injunction to the Animal Welfare Institute, Mountain Communities for Responsible Energy, and David Cowan.
The West Virginia Public Service Commission approved a site plan in 2006, in spite of opposition over bats and other issues.
The West Virginia Supreme Court of Appeals affirmed the commission last year.
This April, the commission authorized construction. Developers poured foundations for 67 turbines and began building 40.
Opponents again sought review from the state Supreme Court, and on June 10 they sued in Maryland federal court.
Titus attached urgency to the case by setting a hearing for August and asking both sides for advice on conducting it as a trial on the merits.
Lawyers agreed in July that Titus would hold trial in October and Invenergy would continue building the turbines already underway.
In September, the state Supreme Court of Appeals denied review of the commission decision authorizing construction.
After trial in October, Titus declared a virtual certainty that Indiana bats would die.
His opinion held that construction has increased, rather than diminished, the likelihood that Indiana bats were there.
Indiana bats weigh about a quarter of an ounce, he wrote. He estimated their population at about 468,000 nationally and 17,000 in West Virginia.
He wrote that they hibernate from mid-November through March.
He wrote that the average turbine in the Mountaineer wind project, 75 miles away, kills 47.53 bats per year.
He wrote that BHE's risk assessment for Beech Ridge estimated 6,746 bat deaths a year.
That would lead the nation, according to Titus.
He wrote that Invenergy is the nation's fifth largest wind developer, with nearly 2,000 megawatts of electrical capacity.
He wrote that the project would cost $300 million and produce 186 megawatts, enough to power 50,000 West Virginia homes.
He wrote that Invenergy and Appalachian Power signed a 20 year contract for 105 megawatts.
He wrote that in 2005, BHE Environmental caught 78 bats at 15 sites in five days. Bats from the same generic group as Indiana bats turned up, he wrote, but no Indiana bats turned up.
He ignored testimony that BHE searched for hibernation caves within five miles and found none, observing that Indiana bats migrate hundreds of miles from their caves.
He sternly rejected an argument from developers that they could plan and carry out methods to protect Indiana bats.
He wrote that he had little confidence that they would implement any strategy, and he expressed skepticism that they would identify Indiana bats while the turbines operate.
He wrote that an incidental take permit might find some locations appropriate and others inappropriate.
He wrote that the 40 turbines could operate from Nov. 16 to March 31.