Have we all gone batty? The need for a better balance between the conservation of protected species and the development of clean renewable energy

Fears of collision with blades and radar interference have caused a stir in the world of renewable energy. Animal rights activists argue that wind farms have an adverse effect on bat populations across the country. In a recent Maryland circuit court decision, Animal Welfare Institute v. Beech Ridge Energy (“Beech Ridge”), a judge granted a preliminary injunction against the continued development of a mountain top wind farm in favor of a citizen activist group on behalf of the Indiana bat.

While desirable to protect the endangered species of our nation, it is equally important to encourage the research and development of clean renewable energy. This Note proposes that Congress enact new legislation to better balance these interests. The court in Beech Ridge believed that “[t]he two vital federal policies at issue . . . [were] not necessarily in conflict.” The history of the Beech Ridge project, however, tells a different story.6 Several years of litigation on the issues of siting, neighbor conflict, and the Indiana bat was time consuming and costly, not just because of the litigation, but also the prolonged starting date of turbine operation.

In order to prevent situations like Beech Ridge and require judges to grant injunctions with a very low burden of proof, this Note proposes new legislation to better balance the interests of affected species with efficient renewable energy development. By putting an end to citizen suits and the resulting litigation, companies will be better able to spend money on thorough research and mitigation techniques and technologies. Ultimately, this will enable faster development of renewable energy and better species conservation.

First, this Note will trace the history of the Beech Ridge Energy litigation and the uncertainty regarding the bats’ presence.8 Secondly, the note will set up the importance of renewable energy and the necessity of allowing its development without fear of the Endangered Species Act (“ESA”) litigation. The fourth section will provide an overview of the ESA by detailing certain components within and how the common law has in effect broadened the reach of the ESA. The final section will address why and how Congress should carve out a new provision within the ESA to encourage this development and protect it from sometimes impractical litigation.