Wind Power Wins, Bats Lose In Federal Court

A federal district court has rejected a challenge to a “take permit” issued by the U.S. Fish and Wildlife Service to a wind power project under development in Ohio. The permit allows the 100-turbine project to take 130 endangered bats over a 25-year period, while also requiring the cut-in speed of the blades to be raised above the manufacturer’s specifications and specifying a feathering of the blades at lower speeds. The permit also requires the project to acquire and protect 217 acres of bat habitat. A local environmental group sued to invalidate the permit, but the U.S. District Court for the District of Columbia has upheld its terms. In doing so, the court invoked a precedent that rejected the contention that a project “must mitigate as much as the developer could possibly afford.” This decision, according to a client alert from Hunton & Williams, “is a welcome development in the case law for any wind energy project which requires a permit to authorize the take of an endangered species.”