Federal Court stops WV wind project to protect bats

A Maryland federal district court ordered, reluctantly, that construction halt and operation cease (from April 1 to November 15) at Invenergy’s  Beech Ridge Project in Greenbrier County, West Virginia, until such time that Invenergy obtain an Incidental Take Permit pursuant to the federal Endangered Species Act.

While the opinion’s conclusion is offered below, the whole case is worth reading. Message to developers: carefully dot all “I”s and cross all “T”s in the permitting process.

XV. Conclusion

As noted at the outset, 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. Congress, in enacting the ESA, has unequivocally stated that endangered species must be afforded the highest priority, and the FWS long ago designated the Indiana bat as an endangered species. By the same token, Congress has strongly encouraged the development of clean, renewable energy, including wind energy.[FN: See, e.g., Wind Energy Research and Development Act of 2009, H.R. 3165, 111th Cong. (2009) (“To provide for a program of wind energy research, development, and demonstration, and for other purposes.”); Press Release, U.S. Dep’t of Energy, Secretary Chu Announces $93 Million from Recovery Act to Support Wind Energy Projects (Apr. 29, 2009); President Barack Obama, Remarks at Trinity Structural Towers Manufacturing Plant, Newton, Iowa (Apr. 22, 2009) (announcing that “[m]y budget also invests $15 billion each year for 10 years to develop clean energy”); U.S. Dep’t of Energy, 20% Wind Energy by 2030: Increasing Wind Energy’s Contribution to U.S. Electricity Supply (July 2008).] It is uncontroverted that wind turbines kill or injure bats in large numbers, and the Court has concluded, in this case, that there is a virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana
bats in violation of Section 9 of the ESA.

The two vital federal policies at issue in this case are not necessarily in conflict. Indeed, the tragedy of this case is that Defendants disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species

Sadly, Defendants’ environmental consultant, Russ Rommé, viewed formal
communications from the FWS through rose-colored glasses and simply disregarded what he was told repeatedly. Indeed, the Court finds Rommé’s testimony to be extremely troubling. If the Court were to accept his testimony, it would have to reach one or both of two equally untenable conclusions.

First, Rommé’s description of his communications with Johnson-Hughes is that she effectively countermanded important advice given to BHE by her supervisor, Chapman. The Court rejects Rommé’s myopic view of the communications that he received from the FWS. Johnson-Hughes did not testify, and there were no written communications from her stating that Rommé could disregard vital portions of the letters received from Chapman. Indeed, in one of Rommé’s numerous “contact reports” he documented a conversation with Johnson-Hughes on April 6, 2006, in which he
acknowledged that the FWS had “focused on the critical nature of early screening of potential wind development sites.” BHE Contact Report, Telephone Call Between Russ Rommé, BHE Envtl., Inc, and Christy Johnson-Hughes, U.S. Fish and Wildlife Serv. (Apr. 6, 2006) (Defs.’ Ex. 82). And, in a tragically prophetic comment, he attributed to the FWS a statement that “[t]here are indications wind developers are still not doing this work, and getting themselves [into] trouble because of it.” Id.

While Rommé professed a belief that he could ignore Chapman’s letters based
upon Johnson-Hughes’ allegedly contrary assurances, the lawyer for Defendants considered the March 7, 2006 letter from the FWS of sufficient importance that he filed a formal response to the letter with the WV PSC. In his response, Defendants’ attorney acknowledged that FWS’s recommendations included three years of seasonal vertical radar surveys, seasonal acoustic surveys, seasonal thermal imaging surveys, and surveys
to detect Indiana bats and Virginia big-eared bats emerging from local caves during spring, as well as an additional two years of mist-netting surveys. Letter from Lee F. Feinberg, Spilman Thomas & Battle, PLLC, to Sandra Squire, Executive Secretary, W. Va. Pub. Serv. Comm’n, at 2 (Apr. 3, 2006) (Defs.’ Ex. 79) (attaching Beech Ridge Energy’s response to the March 7, 2006 letter from the FWS). The principal reason cited by Defendants’ attorney for opposing these recommendations was the financial burden
on Defendants and delaying construction of the project, not a disagreement as to the merits of the recommended actions. Id.

Had Rommé listened more carefully to what he was told repeatedly, Defendants would not be in the unfortunate situation in which they now find themselves. It is clear that Rommé adopted a “minimalist” approach to his responsibilities and that he “neither strained very hard nor looked very far” in his effort to find Indiana bats. Montgomery County v. Leizman, 303 A.2d 374, 380 (Md. 1973). Searching for bats near proposed wind turbine locations for one year instead of three,[FN: 54 BHE conducted a mist-net survey near proposed wind turbine locations in July 2005 and a mist-net survey along the transmission line in June 2006.] looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment.

Second, acceptance of Rommé’s testimony would lead one to conclude that there are serious personnel management issues within the FWS, including subordinates routinely countermanding instructions given by superiors. The Court is skeptical of his testimony, but to the extent that there is any truth to Rommé’s characterizations of his conversations with Johnson-Hughes, the FWS should carefully review its procedures to be certain that subordinates do not undermine official communications. The only thing
that is clear from the record is that the responses of the FWS to some of the
communications from Defendants were relatively slow. See, e.g., Letter from Thomas R. Chapman, Field Supervisor, U.S. Fish and Wildlife Serv., W. Va. Field Office, to Russ Rommé, Director, BHE Envtl., Inc. (Mar. 7, 2006) (Pls.’ Ex. 97) (stating that the March 7, 2006 letter was in response to a letter from Rommé dated July 7, 2005).

This Court has concluded that the only avenue available to Defendants to resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for an ITP. The Court does express the concern that any extraordinary delays by the FWS in the processing of a permit application would frustrate Congress’ intent to encourage responsible wind turbine development. Assuming that Defendants now proceed to file an application for an ITP, the Court urges the FWS to act with reasonable promptness, but with necessary thoroughness, in acting upon that application.

The development of wind energy can and should be encouraged, but wind
turbines must be good neighbors. Accordingly, the Court will, albeit reluctantly, grant injunctive relief as discussed above.[FN: The Court wishes to express its sincere appreciation to Nicolas Mitchell, his law clerk, for extraordinary and invaluable assistance in reviewing the massive record in this case, conducting extensive research, and initial drafting of this opinion.]

Opinion by Judge Roger W. Titus: Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. RWT 09cv1519.

Order: Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. RWT 09cv1519.

New York wind energy news

Ecogen – Town of Prattsburgh dispute on hold

Trial court issues restraining order in case concerning 16-turbine project. (Steuben Courier, 12/9) Ecogen previously sued Town of Italy after the Town enacted a moratorium. Municipal developments in each town affect the same wind power project.

Long Island – New York City Offshore Wind Collaborative to Pursue Ocean Floor/Wildlife Surveys, Expects to Issue RFP Spring 2010

The Long Island-NYC Offshore Wind Collaborative, with designs on a 700 MW offshore project, announced that it will begin “pre-development activities,” such as desktop studies of the ocean’s wind, wave and wildlife environment, as part of an effort to develop what may be the country’s largest offshore wind farm proposal. Per the press release:

Approximately 30 wind developers and firms responded to the Collaborative’s (www.linycoffshorewind.com) Request for Information (RFI) issued on July 1, signaling substantial interest in developing a wind farm in the Atlantic Ocean, 13 nautical miles off the south shore of the Rockaway Peninsula.

The Collaborative expects to issue a Request for Proposals (RFP) in the Spring of 2010. The RFP will seek proposals from private development firms to build the project and enter into agreements to sell the clean energy it produces. The wind project would likely be designed for 350 megawatts (MW) of generation, with the ability to expand up to 700 MW… (LIPA, 12/9)

Kansas commercial wind zoning ban and more

Commercial wind zoning ban in Kansas

In what may be a first in the nation, the Kansas Supreme Court approved a county’s outright zoning ban of industrial wind turbines, defined as those over 120 feet or 100kw or “more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system”. Owners of land and of wind rights had challenged county zoning decisions banning such facilities.

On the appeal of a lower court case won by the county, the court unanimously upheld as reasonable under state statute Wabaunsee County’s decision to ban such turbines. The county is home to the Flint Hills and some of the last remaining tall grass prairie -and its denizen, the prairie chicken- in the country.

The court agreed that the Board of County Commissioner’s “findings could reasonably have been found to justify its decision: that the commercial wind farms would adversely, if not dramatically, affect the aesthetics of the county and for that reason should be prohibited.” It also opined that relevant factors included commercial wind farm noncompliance with the county’s comprehensive plan and that a ban was in keeping with the wishes of residents.

The court noted that reasonableness of action by the Board was presumed; overcoming the presumption appears to require what in New York state would be the presentation of sufficient factors demonstrating an arbitrary and capricious action. Another factor viewed favorably the court was that the zoning allowed smaller turbines; the county’s was not an outright ban of all wind facilities.

The court  has ordered the parties to submit supplemental briefs on federal issues: “whether the [lower] district court erred in dismissing the claims alleging that the Board’s decision amending the zoning regulations violated the Takings Clause and the Commerce Clause of the United States Constitution.” Per the court, briefs on those issues are due December 11 and a second round of oral arguments has been scheduled for January 27, 2010.

The case is Zimmerman et al. v. Wabaunsee County (Appeal No. 98,847, 10/30/2009)

Wind Education

KidWind and Pandion announce “WindWise Education” program for grades 6-12. “Pandion and KidWind launched WindWise Education at the annual conference of the Science Teachers Association of New York State (STANYS) on November 2, 2009. WindWise Education is a comprehensive curriculum for grades 6 to 12 that explores the dynamic field of wind through hands on physics, engineering, biology, math, and earth science activities.” I’ve met the KidWind folks; they are a dedicated group.  (Pandion, 11/2009)

NYS wind energy and related updates

Items from around the web:

Beacon Power breaks ground on 20MW flywheel energy storage project in Stephentown, NY.  (OTC Investor, 11/24)

ACENY files petition for rehearing in New York State Public Service Commission proceeding In the Matter of Generator-Specific Energy Deliverability Study (Case 09-E-0497) (NYS PSC, 11/19). Petition is in regards to new PSC requirement that renewable energy projects produce transmission studies prior to obtaining a Certificate of Public Convenience and Necessity (CPCN). See earlier write up here.

New York State passes law to bolster New York’s efforts to reduce greenhouse gas emissions by promoting energy efficiency in homes and businesses throughout the state. The legislation (Extraordinary Session Assembly Bill A.40004/Sweeney) allows New York state municipalities to establish the Property Assessed Clean Energy (PACE) program in order to apply for more than $400 million in federal funds to issue as loans to qualifying homeowners and businesses to install energy efficient retrofits and renewable energy (including wind) systems. Bill was signed into law by Governor Paterson on November 19.  (NYS Assembly, 11/16)

Ecogen sues Town of Prattsburgh in state Supreme Court in Rochester. (Stueben Courier, 11/19)

And lastly, if you’re going to drink this holiday season, you might as well do it thanks to wind power. Or something like that. (Open Forum blog, 11/20) (And if you drink or develop wind power projects, please do so responsibly.)

Pennsylvania trial court rules for wind developer

PPM Atlantic Renewable v. Fayette County Zoning Hearings Board, Court of Common Pleas of Fayette County (Civil Division). Trial court decision of April 30, 2009.

PPM Atlantic Renewable was (is?) intending to install a 24-turbine 50 megawatt nameplate generation wind farm in Fayette County, Pennsylvania (our good neighbors to the south), along an approximately 3.5 mile section of Chestnut Ridge across multiple townships. To install the facility the developer required the equivalent of what in New York would be considered special or conditional use permits, along with height and setback variances.

The ZHB’s central conclusion was that the project would create too great of a negative impact upon the scenic views of Chestnut Ridge. It found compelling project opponents’ arguments that the wind farm would generally have a detrimental effect upon the health, safety, and general welfare of Fayette county and neighboring communities, and also that it would negatively affect the ability of local residents to use adjacent lands.

The court found the ZHB’s decision making lacking (to put it mildly). Relying on the project opponents’ scant evidence regarding impact on viewshed and tourism was improper as what opponents had offered up was “nothing more than mere speculation.” The court also found fault with the ZHB’s review of the variances PPM sought, noting that PPM had provided evidence that it needed to cite its facilities in particular locations and at specific heights to maximize its ability to extract energy from the wind resource.

Because the ZHB committed multiple errors of law, the Court concluded that the ZHB had abused its discretion and ordered the project back to the ZHB for further proceedings consistent with the court’s opinion. The ZHB is required to consider and grant each special exception as required by law and may impose conditions it deems fit to protect the health, safety and general welfare of the community.

This blogger was struck by how favorable to wind developers -by New York local zoning standards anyway- Fayette County zoning rules and procedure are. The process by which the ZHB denied the project was quick. Application was made in September 2007 and a decision (albeit denial) was reached in February 2008. By that point in New York, you’re just getting warmed up! Likewise, setback requirements (in the low hundreds of feet) are quite minimal when compared to typical New York local zoning standards.

Thanks to attorney Dwight Merriam of Robinson & Cole LLP (Hartford, CT) for bringing the case to our attention. A copy of it, and Dwight’s write up, may be found at the IMLA blog.

Appeals court upholds wind farm as public utility determination

In a decision of considerable importance for wind developers in New York state, an appellate court upheld a determination by a local Zoning Board of Appeals that wind turbines are utilities under a town’s local zoning provisions. That brings to two the number of New York’s four judicial departments in which intermediate appeals courts have found compelling a local determination that wind farms may be considered public utilities.  Generally speaking, public utilities enjoy relaxed requirements under local zoning.

St. Lawrence Windpower, LLC applied to the Town of Cape Vincent Planning Board for site plan approval for its proposed construction of a series of wind-powered generators (project) on property designated as an “Agricultural Residential District.”  During the zoning process, the ZBA had determined that  wind turbines qualified as a utility and that the project therefore was a permitted site plan use in that district.

Local residents challenged the determination in an Article 78 proceeding. The trial court dismissed the challenge and the residents appealed.

The appeals court indicated that pursuant to section 315 of the Town of Cape Vincent Zoning Law, utilities are defined as “telephone dial equipment centers, electrical or gas substations, water treatment or storage facilities, pumping stations and similar facilities” that have been constructed or maintained by municipal agencies or public utilities.  The court concluded

that the classification by the ZBA of the series of wind-powered generators as a utility within the meaning of section 315 of its Zoning Law is neither irrational nor unreasonable, and that the determination is supported by substantial evidence.

The court approvingly cited a July 2008 appellate decision from New York’s Third Judicial Department, reported in this blog here.  As in that case, involving Beekmantown wind development, the appellate court cited to the seminal 1993 Court of Appeals case, Matter of Cellular Tel. Co. v Rosenberg, 82 NY2d 364 (1993).

The case is In Re WIND POWER ETHICS GROUP (WPEG) v ZONING BOARD OF APPEALS OF TOWN OF CAPE VINCENT (N.Y. 4th APP. DIV., March 20, 2009) (2009 NY Slip Op 2016, 34 CA 07-01995)

Court rejects Prattsburgh wind ethics violation allegation

Opponents of the 36-turbine Windfarm Prattsburgh LLC project recently lost their judicial challenge, made on ethics grounds, to the votes cast by Town Supervisor Harold McConnell in favor of permitting the Town of Prattsburgh to exercise eminent domain against certain town properties for the purpose of laying electrical lines to serve the wind farm.

In her February 26 decision, Judge Marianne Furfure of the Supreme Court of New York (Steuben County), found that Supervisor McConnell had not violated General Municipal Law section 805-a or the Town’s Code of Ethics. The judge therefore rejected petitioners’ challenge to the June 24, 2008 decision of the Town Board to allow eminent domain to proceed.

The controversial project requires electric lines to be buried. Supervisor McConnell, an advocate of the project, cast a tie breaking vote on June 24, 2008, to approve the condemnation of certain town properties to permit the placement of such lines.  Supervisor McConnell in late 2007 had, in his private role as a real estate agent, received $1900 from the seller’s agent in a transaction between Windfarm Prattsburgh LLC and a local property owner (whose property, because of the transaction, was not required to be condemned). (The opponents earlier in the month lost an appellate court challenge to the eminent domain decisions themselves.)

Project opponents alleged that he was therefore not sufficiently disinterested to cast votes on a preliminary April 2008 and the subsequent June 2008 Town Board resolutions, in violation of state law and the Town Ethics Code.  After first determining that the court had jurisdiction and the petitioners had standing, the court concluded that the April 2008 resolution was not a final decision and so was not appealable.

As for the June 2008 decision and McConnell’s vote, the court reasoned that

[g]iven the isolated nature of the transaction, the time frame within which it occurred, and McConnell’s long standing support of  project, it cannot be said, under all the circumstances, that the monies he received were a gift from Windfarm for any official action on his part or compensation for a matter pending before the Board… Under all the circumstances, receipt of this broker’s commission did not create the likelihood that McConnell’s vote to condemn was influenced by the payment he received.

As consequence, the court declined to annul the June 2008 decision.

The case is Dudley v. Town Board of the Town of Prattsburgh, 2009 NY Slip Op 50317U, 2009 NY Misc. Lexis 472) (Sup. Crt of New York (Steuben County), Feb. 26, 2009).

The issue raised in the case -ethics in the wind development context- is the basis for the investigation of New York Attorney General Andrew Cuomo into the activities of wind developers and town officials in New York state.