## Facts

- Animal Welfare Institute, a local group, and an individual resident sued Beech Ridge Energy LLC and an affiliate developing a large wind-energy project on Appalachian ridgelines in Greenbrier County, West Virginia.
- The project contemplated roughly 122–124 turbines over more than 20 miles of ridgelines, with associated roads and transmission infrastructure.
- The Indiana bat (*Myotis sodalis*) is listed as endangered under the Endangered Species Act (ESA).
- The site was within the species’ range and near known bat hibernation caves; the habitat characteristics were consistent with Indiana bat use.
- Trial evidence indicated wind turbines can kill bats through blade strikes and pressure-related injury, and that bats may fly within the rotor-swept zone.
- Defendants’ mist-net surveys did not capture Indiana bats; plaintiffs relied on habitat evidence, proximity to hibernacula, and acoustic detections consistent with Indiana bats, as well as mortality data from other wind facilities.
- Plaintiffs alleged that construction and operation without an incidental take permit (ITP) would result in unlawful “takes” under ESA § 9 and sought declaratory and permanent injunctive relief.

## Issues

1. Whether ESA citizen-suit jurisdiction permits injunctive relief for imminent, reasonably certain future “takes” before any take has occurred.
2. What evidentiary showing is required to prove a threatened ESA § 9 take (including the required degree of certainty).
3. Whether construction and planned operation of the wind project, without an ITP, were reasonably certain to cause prohibited takes of Indiana bats.
4. What permanent injunctive relief was appropriate given the ESA violation and the project’s asserted public benefits.

## Decision

- The court held plaintiffs proved by a preponderance of the evidence that Indiana bats were present in the project area during the active season.
- The court found that, absent an ITP, turbine operation was reasonably certain to kill or injure Indiana bats, constituting prohibited takes under ESA § 9.
- The court rejected reliance on discretionary, post-construction mitigation as a substitute for ESA compliance through avoidance of take or an ITP with enforceable conditions.
- The court entered permanent injunctive relief restricting further construction and operation of significant project components unless and until defendants obtained an incidental take permit, while allowing limited activities crafted to reduce take risk.

## Legal Principles

- ESA citizen suits may seek to enjoin imminent, threatened violations when evidence shows a reasonably certain threat of future take; speculative harm is insufficient.
- A prohibited ESA § 9 “take” includes killing or injuring endangered wildlife, and liability may be established through probabilistic scientific proof.
- The applicable burden is preponderance of the evidence; “reasonably certain to occur” requires more than possibility but not absolute certainty.
- Where a project is reasonably certain to cause take, compliance generally requires avoiding take or obtaining an ESA § 10 incidental take permit; voluntary or nonbinding mitigation does not cure a demonstrated § 9 risk.
- In fashioning equitable relief, courts may tailor injunctions to reduce take risk, but renewable-energy benefits do not displace the ESA’s statutory protections once a violation is shown.

## Conclusion

The court concluded that the wind project’s operation posed a reasonably certain, imminent risk of unlawfully taking endangered Indiana bats and therefore enjoined substantial construction and operational activities unless defendants obtained an ESA incidental take permit, with limited allowances structured to reduce take during sensitive periods.


Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540 (D. Md. 2009)