Conservation Law Clinic fights to protect Indiana bat

Post by IU Newsroom intern Amanda N. Marino:

After almost four years of litigation, the Conservation Law Clinic made headway in a case being fought to protect Indiana bats from EverPower’s Buckeye Wind Project. Through semester-long internships with the clinic, Indiana University Maurer School of Law students get hands-on experience with litigation in potentially precedent-setting cases like this one, Union Neighbors United v. Sally Jewell in her Official Capacity as Secretary of the United States Department of the Interior, et al Appellees.

“It took a good deal of our time for at least four years,” said W. William Weeks, director of the Conservation Law Clinic. This kind of time and attention is not uncommon for a law firm.

W. William Weeks

W. William Weeks

The Conservation Law Clinic at IU’s Maurer School of Law serves three main purposes: to represent conservation organizations free of charge; to improve conservation law and policy; and to give a hands-on introduction to the practice to second- and third-year law students.

Weeks said the case began with filing a comment on the Buckeye Wind Project’s environmental impact statement. Originally, the project was granted an incidental take permit, which allowed for injuries of the endangered Indiana bat at a rate of about five bats per year.

Weeks said he and the Conservation Law Clinic took an interest in the case because they felt the government was allowing more incidental deaths than the law permits and that in awarding the permit, the U.S. Fish and Wildlife Service didn’t seek a practical operating plan for the wind facility that would kill fewer bats. Based on the clinic’s interpretation of the Endangered Species Act, it wasn’t a matter of whether the number of bats killed affected the population. Instead, it was about doing the least harm to the population and finding reasonable alternatives to avoid potential harm.

This month, the U.S. Circuit Court of Appeals in Washington, D.C., reversed and remanded the case in part and affirmed it in part, which means the people challenging the permit got some of what they wanted. Now the government and EverPower have about a month to appeal, Weeks said. If they don’t appeal, the case will return to the District Court, where a new order will be issued that is consistent with the findings of the appeals court decision. The Fish and Wildlife Service will be required to consider a full range of reasonable alternatives before issuing an incidental take permit that will allow the EverPower project to cause the death of any Indiana bats.

Because the decision set a new interpretation of the National Environmental Policy Act, all environmental impact statements reviewed under that act will now have to meet the new standards set in this case, Weeks said.

“That’s why it’s a win for us,” he said. “It has pretty wide implications.”

Second- and third-year law students who have been working on the case benefited as well, Weeks said.

“It’s just an incredible introduction to federal litigation for them,” he said.

Depending on when the students have a semester-long internship with the Conservation Law Clinic, they may be a part of anything from the first comment that is filed in a case to the circuit court appeals process, he said. All of the elements of litigation are shared with the students.

Student-staffed clinics are now an important part of legal education, but IU’s clinic is one of the few that focus on conservation and litigate cases, Weeks said.

“It prepares them better to be lawyers,” he said.



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