My colleague Rick Steelhammer has the story this morning about a federal judge halting work on the Beech Ridge Energy wind power facility over in Greenbrier County, W.Va.

One Coal Tattoo reader is already citing this story as proof that environmentalists want to end all energy production and have us all — what’s that bumper sticker line, “Freeze to death in the dark”?

I don’t want to go too far into the weeds on the issue of the potential problems associated with wind-energy development in Appalachia. But it seems like there are some similarities between what’s happened with Beech Ridge Energy and what’s going on with mountaintop removal coal mining, especially with the latest threat by CONSOL Energy to lay off 500 workers in Clay County because of a federal court ruling that requires public involvement in key parts of the decision-making process on one of its permits.

The take-home message might be that the world is changing, and citizens are demanding that developers and the government consider the impacts of energy projects, ensure that they avoid or minimize those impacts, and try to move us all toward a cleaner future. And developers (or coal companies) who ignore that reality are rolling the dice, both with their investors’ money and — in the unfortunate case of CONSOL — their workers’ jobs.

First,  let’s review what happened with CONSOL’s Fola Coal operation. For a complete history of this, check out my previous post, CONSOL to lay off 500 miners … But who is to blame?

In short, Fola applied for a permit in October of 2004. A month later, the Corps of Engineers told the company it needed to submit a copy of its “mitigation plan,” a key document that outlines the company’s proposals to compensate for the streams it would bury, “mitigating” the damage to below the significance level that could block the permit from being issued. But, the Corps went ahead and put the permit out for public comment anyway, without the details of the mitigation plan. Environmentalists objected, saying they should have the opportunity to have experts examine the mitigation plan and see if it was sufficient. Public comments to that effect were submitted in May 2005.

Corps officials went ahead and issued the permit in March 2008, without first making the mitigation plan public and allowing citizens to offer comments on its adequacy. Fola lawyers joined the Corps in defending this decision to keep the public out of the process.

But U.S. District Judge Robert C. Chambers disagreed. In his ruling late last month, Judge Chambers said the mitigation plan was a key part of Fola’s permit — and a central factor in the Corps’ decision to grant the permit — and therefore had to be subjected to the scrutiny of a public comment period. Chambers also opined that the ruling could easily have been avoided, if only the Corps had issued a supplementary public notice to allow comment on the mitigation plan:

… The Court finds it prudent to note that this litigation could have
easily been avoided and the flaw in the original Loadout and Fola Notices easily remedied if the Corps had issued supplemental notices in the instant case. With regard to the Loadout and Fola applications there were periods of approximately nine months and nearly a year and a half, respectively, between the time the company submitted a CMP and permit approval.

Such notice would have apprised Plaintiffs and the public in general of the truly significant issues raised by each proposal, therefore providing the public an opportunity to comment intelligently thereon. Consequently, such supplemental notice would have conserved judicial and other government resources, meanwhile, preventing the expenditure of time, money and stress on the part of Plaintiffs as well as both mining companies.

As I reported previously, public officials like Rep. Shelley Moore Capito, R-W.Va., and business leaders like Steve Roberts of the West Virginia Chamber of Commerce were quick to jump on the CONSOL layoffs. They blamed the Obama administration’s “war on coal,”  and the “uncertainty” they say is caused by what CONSOL referred to as a “repeated assault from nuisance lawsuits and appeals of environmental regulations.”

I haven’t heard any business leaders or government officials question why Fola — let alone the Corps of Engineers — didn’t just take the time to let the public comment on the company’s mitigation plan. Coal company officials tout these mitigation plans, and the man-made streams they generally involve, as being great for the environment. If that’s true, then you would think the plans would easily withstand a little scrutiny from a public comment period.

Now, how does the court ruling on Beech Ridge Energy come into all of this?

Well, as Steelhammer explained in his story,  U.S. District Judge Roger W. Titus “determined that Beech Ridge violated the terms of the Endangered Species Act by not obtaining an Incidental Take Permit from the U.S. Fish and Wildlife Service before beginning work on the project.“

Under the ESA, it is generally illegal to kill — “take” — endangered species. You can basically get exempted from that prohibition of you get a permit from the U.S. Fish and Wildlife Service. Beech Ridge Energy never did that.

As Steelhamer explained:

… Titus determined that the facts in the case prove “that wind turbines kill or injure bats in large numbers,” and that there is a “virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana bats” in violation of the Endangered Species Act.

The need to develop renewable energy and to protect endangered species “are not necessarily in conflict,” Titus wrote “Indeed, the tragedy of this case is that the defendants (Beech Ridge and its parent company, Invenergy LLC of Chicago) disregarded not only repeated advice from the Fish and Wildlife Service but also failed to take advantage of a specific mechanism, the ITP (Incidental Take Permit) process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species.”

Further:

The judge concluded that the only way for Beech Ridge to “resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for an ITP.”  He urged the Fish and Wildlife Service to “act with reasonable promptness but with necessary thoroughness” in expediting the permit.

So, the similarity here is that the adverse court rulings against CONSOL and against Beech Ridge could easily have been avoided. Both companies could have taken routes other than fighting public involvement and refusing to obtain a necessary permit.

My buddy Frank Maisano, a spokesman for the wind energy industry, told Steelhamer that the Beech Ridge ruling could  “embolden die-hard opponents of wind power projects that are approaching the finish line.” He said opponents of the wind project “have thrown everything but the kitchen sink at this project, and finally something has stuck.”

Similarly, CONSOL’s Nicholas J. DeIuliis characterized the citizen lawsuit seeking public input on Fola’s mitigation plan an effort to “unnecessarily impede our ability to sustain our operations.”

I’ve met folks who live near proposed wind energy projects who are against those projects period. And certainly, there are those in the environmental community who want to shut down all mountaintop removal — maybe even all forms of coal mining.

But look at what Judge Titus wrote in his decision on Beech Ridge Energy:

Congress, in enacting the ESA, has unequivocally stated that endangered species must be afforded the highest priority, and the FWS long ago designated the Indiana bat as an endangered species. By the same token, Congress has strongly encouraged the development of clean, renewable energy, including wind energy.

The development of wind energy can and should be encouraged, but wind
turbines must be good neighbors.

When I interviewed new Office of Surface Mining Reclamation and Enforcement Director Joe Pizarchik yesterday, he talked repeatedly about the “balance” Congress set out to achieve when it wrote the 1977 Surface Mining Control and Reclamation Act.

Indeed, in that landmark law, Congress set as national goals, among other things:

… Assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment … and the Nation’s need for coal as an essential energy source; and

— Assure that coal mining operations are so conducted as to protect the environment.

So, there may be folks who simply want to stop wind energy (at least if it’s proposed near their own community) and those who want to  end all coal mining. But for the coal industry — or the wind energy industry, for that matter — to simply attack rulings like Fola and Beech Ridge ignores Sen. Robert C. Byrd’s recent call to “embrace the future.” As Byrd said:

… We have our work cut out for us in finding a prudent and profitable middle ground — but we will not reach it by using fear-mongering, grandstanding and outrage as a strategy.