New legal battle looms for Highland New Wind
Three organizations and three individuals retained a Washington, D.C. law firm to force a Virginia wind energy company to protect endangered bats.
Highlanders for Responsible Development, the Animal Welfare Institute, Rifle Ridge Farm, Carol A. Peterson, Rick Webb and Richard A. Lambert retained the firm Meyer, Glitzenstein and Crystal (MGC) to represent them against Highland New Wind Development, LLC (HNWD).
MGC attorney William S. Eubanks notified HNWD by letter that the company's wind energy project will "almost certainly result in unauthorized takes of Indiana bats and Virginia big-eared bats," in violation of the Endangered Species Act (ESA). The letter demands that HNWD obtain an incidental take permit from the U.S. Fish and Wildlife Service (USFWS) or face either a USFWS enforcement action or a citizen suit by the above-named groups.
The letter states in part: "If we do not hear from you, we will assume that no changes will be made and will consider all available avenues, including litigation, to conserve the endangered Indiana bat and Virginia big-eared bat."
In 2009, MGC represented plaintiffs in a similar case against Beech Ridge Energy, after that company started construction of a wind energy facility in northern Greenbrier County.
As a result of that lawsuit, Beech Ridge was ordered to reduce its project from 124 to 100 turbines and limit its operation to daytime hours between April 1 and November 15, when endangered bats are active.
In September 2005, the USFWS wrote to HNWD, recommending "a multi-year pre-construction study be conducted at the proposed site in order to identify any risks to federally-protected species."
HNWD conducted a two-month, pre-construction study utilizing radar and night-vision technology, which the potential plaintiffs say is "not reliable for differentiating between bats from birds, much less bat species from bat species."
During Virginia State Corporation Commission (SCC) proceedings in 2007, two independent bat experts raised serious concerns about the project's impact on bats. Nevertheless, the SCC granted a certificate of public convenience and necessity to HNWD in December 2007, allowing the project to go forward.
The potential plaintiffs claim the Highland County Board of Supervisors could be found liable if it issues a building permit to HNWD. The notice of violations states in part:
"Here, the Highland wind project cannot be constructed and operated without first obtaining a building permit for turbine construction from the Highland County Board of Supervisors - meaning that the grant of such a permit authorizing HNWD's unlawful conduct to proceed in the absence of and ITP would be both a but-for and proximate cause of the unauthorized takings of endangered species."
The potential Endangered Species Act lawsuit is just the latest obstacle to HNWD's wind energy project.
Virginia's Department of Historic Resources (DHR) attempted to regulate the project's visual impact on nearby Camp Allegheny, a Civil War battlefield in Pocahontas County, but the SCC ruled that the DHR did not have jurisdiction of the project's impact on another state. The SCC also held that the Highland County Board of Supervisors had made the effective ruling on visual impact when it issued a conditional use permit to HNWD in 2005.
In May, the Civil War Preservation Trust placed Camp Allegheny on a list of the nation's ten most endangered battlefields, along with Gettysburg, in Pennsylvania and the Wilderness, in Virginia.