Beech Ridge (West Virginia) Injunction Relief Granted

February 21, 2013 – West Virginia: This is a case about bats, wind turbines, and two federal polices, one favoring protection of endangered species and the other encouraging development of renewable energy resources. It began on June 10, 2009, when Plaintiffs Animal Welfare Institute (“AWI”), Mountain Communities for Responsible Energy (“MCRE”), and David G. Cowan (collectively, “Plaintiffs”) brought an action seeking declaratory and injunctive relief against Defendants Beech Ridge Energy LLC (“Beech Ridge Energy”) and Invenergy Wind LLC (“Invenergy”) (collectively, “Defendants”). Plaintiffs allege that Defendants’ construction and future operation of the Beech Ridge wind energy project (“Beech Ridge Project”), located in Greenbrier County, West Virginia, will “take” endangered Indiana bats, in violation of § 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538(a)(1)(B).

One month after this action was initiated, Defendants filed an answer and brought a counterclaim for costs. The next day, Plaintiffs filed a motion for a preliminary injunction and Defendants thereafter filed an opposition. On July 14, 2009, the Court conducted a telephone status conference with the parties and set a hearing on the preliminary injunction motion for August 11, 2009, but requested that the parties advise the Court by August 4, 2009 whether they would consent to treat the hearing as one on 2 the merits, pursuant to Federal Rule of Civil Procedure 65(a)(2). On July 30, 2009, with consent of the parties, the Court consolidated the preliminary injunction hearing with a trial on the merits, rescheduled the hearing for October 21, 2009 and set an accelerated discovery and briefing schedule.1 Defendants agreed to continue construction on only 40 of the 124 planned turbines, pending a disposition of the merits. The Court held a four day trial on October 21-23, and 29, 2009.

 

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