ELR Citation: ELR 20278
No(s). 09cv1519 (D. Md. Dec 8, 2009)

A district court enjoined an energy company from building additional wind turbines at a wind farm project in West Virginia until it obtains an incidental take permit under the ESA for the Indiana bat, an endangered species. Indiana bats are present at the project site and the project is reasonably certain to imminently harm, kill, or wound the bats in violation of ESA §9. Despite the company's arguments to the contrary, the ESA's citizen-suit provision allows actions alleging wholly-future violations of the statute where no past violation has occurred. This is consistent with the text of the citizen-suit provision, the legislative history, the purpose of the ESA, as well as decisions from the federal circuit courts squarely addressing the issue. Because the project will take Indiana bats, injunctive relief is appropriate. The company argued that adaptive management after completion of construction was the most appropriate way to address any perceived threat to Indiana bats. But because adaptive management is entirely discretionary, it will not eliminate the risk to Indiana bats. The court, therefore enjoined the construction of any additional turbines until an incidental take permit has been obtained. While the court cannot require the company to apply for or obtain such a permit, it is the only way in which the court will allow the project to continue. The injunction, however, does not apply to the 40 turbines already under construction.