January 2016



We must reject the temptation of pseudo-science; there is a notion that the troubling or mysterious aspects of our lives can be explained through a host of scientific principles – primarily in the field of physics – that may reveal some secret that lies in the depth of our being. Metaphysics is not physics. There are charlatans out there who will tell us that the fascinating world of quantum physics can explain the confounding aspects of human thought and experience and can push the boundaries of ordinary life to worlds beyond imagination – if we can simply learn to understand better. They will announce that their claims have been proven! But you will quickly see that their “proof” did not meet the same standards as that which provided the underlying science. It is an old trick, to attach the disreputable to the reputable in an attempt to turn the lead into gold. Let us be rid of such alchemy.

From this you may believe that I reject connections between the scientific and the mystical or mythic. Not at all. It is true that we are constantly learning more about how the human animal operates. The redoubt of the mind is beginning to be breached through both the physical and social sciences. Evolutionary understandings that culminated in the late Dr. Ernest Becker’s formulation of his theory of consciousness of death as the mainspring of human activity is beginning to bear fruit in the very recent work of psychology professors Solomon, Greenberg, and Pyszczynski, in their recent treatise “Worm at the Core.” I know; the doubters will say that social science itself is not a hard science – but it is measurable would be my response. Not only that, there are facts to be assessed even if conclusions are disputable. But if this is so, it provides tremendous insight into all ranges of human thought from philosophy to religion to the work of Joseph Campbell and from him the resultant sensation of the creations of George Lucas. The stories of humanity – our stories – take on a striking patina in light of scientific revelation.

I hear your argument. You say that I am going even further in the direction of explaining all that is wondrous, and mysterious, and incomprehensible, and tragic, and beautiful about human life in terms of scientific realism. Let me respond. I believe we can and should accept all that science has to offer, without attaching to it our notions of the “other-worldly” that our human minds are prone to do. We live in a world whose mere existence is so astonishing that this truth in itself is a cause for wonder and awe. If we were to stop there and simply admire and marvel at the vibrant and ever-changing stage that has been set, it would be sufficient. But there is yet more. As individuals we are players on this stage where we interact with everything whether it be earth, sky, animal, or person and all there is. In those interactions there are moments of intense feeling, reactions that reach the core of our heart. There are those moments when you will feel so uniquely yourself, that reality is nearly tangible. Some will say that this is not real and that it is merely a product of the conscious mind conditioned by evolution and a life lived reacting to stimuli. I can appreciate this response. Yet, there is more. It is when we observe facts, actual events or circumstances in our lives or in those of others, that defy mathematical odds and that coincide with thoughts and actions of the person in the moment. It is not merely that we see these situations play out in human stories. That would be insufficient. It is that we know them from the actual events of our lives. A life changed by a missed flight, or the person sitting next to us who says exactly what we were thinking using the very words we were thinking, the phone call at the exact moment that we were thinking of a person many miles away whom we had not heard from in ages. The examples are innumerable and sometimes most dramatic, at other times quite simple. Because they are factual occurrences, they cannot merely be the product of a receptive mind, even if we were looking for a sign or wonder. It is impossible for us to conjure the sign in the heavens, or direct the free will of a person we have never even met. It is the fact of the mysterious not derived from imagination that I mean to present here.

Science is a human-developed method for explaining the laws of this most remarkable world. It is designed for our understanding and comprehension. It serves us incredibly well and I expect that it will continue to do so for as long as we remain. But, because of this, it is as limited as we are. To accept the mystical, the mysterious, is simply to acknowledge that there exists that which is beyond our comprehension. I do not believe this is too much to ask if we acknowledge that we are yet animals, albeit the most highly developed animal on this planet. If one can accept this notion, that as a humble species we are not all-knowing and that we are not capable of reaching such lofty heights, then we can also acknowledge that there is more than we can explain and comprehend using the most incredible tool we have yet developed – science.

Therefore, once the scientific explanations have been examined, I do not believe the mysterious and the mystical can be explained through any human means, and I will go one step further. I do not believe that we should even try. That which is ineffable is beyond words and perhaps even conscious thoughts. We see through a glass darkly, and we are given these ever so brief moments of illumination into a world that, ultimately, may be beyond our rational comprehension. Rather than search for an explanation that in the end may elude us anyway, is it not better to marvel in such revelations? Is there not joy in those moments lived in the beyond? Even the labeling of “good” or “evil” is too much to ask, for those are created concepts. It is the comfort of the abnormal breaking through the cocoon of complacency that is, in itself, the life-changing moment. Your search down the rabbit hole may, in the end, terribly frustrate if you try too hard to make sense of it; because perhaps that’s not why the rabbit appeared to you.



Comments to the Botetourt County Board of Supervisors on January 25, 2016. The next day, they voted unanimously to approve the project:

Botetourt County Board of Supervisors:

Today, I submitted for the record the following comments and concerns to the Rockbridge County Board of Supervisors in anticipation of their meeting covering the Rocky Forge Wind Project.  I am forwarding them to you in advance of your consideration of a request for a Commission Permit and Special Exception Permit to make you aware of this concern and so that you can factor it into your consideration of the request.

Thank you for considering this information,

Timothy J. Keefer


Rockbridge County Board of Supervisors:

 Re:  Rocky Forge Wind Project and the Eastern American Golden Eagle.

Today there will be a presentation before the Rockbridge County Board of Supervisors concerning the Rocky Forge Wind Project currently under consideration in Botetourt County, Virginia.  These comments represent my personal concerns as a resident and landowner in Rockbridge County, Virginia, and are not offered in my capacity as an Adjunct Professor of Law at the Washington & Lee University School of Law.

Apex Clean Energy (Apex) proposes to build a wind farm on North Mountain in Botetourt County, Virginia, near appropriately named Eagle Rock.  One concern, among many, about this project is the impact it may have on the Golden Eagle.  Despite the presence of this major issue there has been little to no apparent news coverage or commentary concerning it, and documentation so far received from Botetourt County appears to be silent on the subject.

According to the Virginia Department of Game and Inland Fisheries (DGIF), the Eastern Golden Eagle is believed to be a “small and potentially vulnerable population” that is “geographically isolated and potentially [a] distinct population….”  According to DGIF, this population breeds in northeastern Canada, migrates through the central Appalachians, and winters in Virginia.  “Eastern golden eagle migration is strongly associated with the Appalachian ridgelines….”  In fact, since 2010, DGIF has been engaged in research to better understand this small and potentially vulnerable population to include “potential impacts of wind energy….”

Published tracking research (cited below) from DGIF, the Wildlife Center of Virginia, and West Virginia University, demonstrates that this population – while significantly dispersed in its Summer grounds in the Canadian province of Quebec – migrates and nests in a concentrated pattern in the Winter months in the ridgelines along the Virginia-West Virginia border and, clearly, in the area where the Rocky Forge Wind Project is proposed.  The tracking plots cited below are striking.  This small, vulnerable, and distinct population of golden eagles migrates in a funnel pattern resulting in a very narrow corridor in the Virginia highlands, and this wind generation project is sited right at the base of that funnel creating a potentially dangerous and uniquely serious threat to this population.

Considering that the Rocky Forge Wind project is sited precisely in the concentrated migration and nesting location of the “small and potentially vulnerable population” of the Eastern Golden Eagle, viability of the project and its impact on this population should be raising significant concern.

In light of the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) and the Migratory Bird Treaty Act (16 U.S.C. 703-712), the Federal Government has struggled with the tension between the wind power industry and the harm that these projects cause to American eagles.  In light of changes to the law, a 5-year permit scheme was created to allow wind power companies to kill eagles for up to that amount of time before having to reapply for another permit.  In December 2013, the Federal Government announced a rule that would create a 30-year permit, basically giving the wind power company nearly carte blanche permission to kill eagles for the serviceable life of a project.  In mid-2015, the 30-year permit rule was thrown out by a Federal Court, leaving the 5-year permit process in place.  See Shearwater v. Ashe, No. 14-CV-02830-LHK (N.D. Cal. Aug. 11, 2015).  A few days ago on January 19, 2016, the U.S. Fish & Wildlife Service dropped its appeal of that ruling.  The legal implication of this is that wind projects that could impact eagles in the United States might now only be permitted for 5 years at a time.  For projects that could impact bald and golden eagle populations, this is a significant consideration.  The investment may not cover the 30 years imagined by such projects, but instead cease bearing fruit after 5 years depending on how a project impacts eagle populations.  How this effects the Rocky Forge Wind Project is unclear because this project will be on private land, but Apex should at this stage (prior to local approval) be able to explain how it intends to comply with the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and the U.S. Fish & Wildlife Service 5-year permitting process which requires mitigation of harm (i.e. “all practicable measures to avoid and minimize the impact to eagles,” U.S. Fish & Wildlife Service Fact Sheet 3-200-71, at 1 (Feb. 20, 2014),) even if a permit is granted.

Apex is well aware of concerns about the impact of its projects on the golden eagle.  Just two months ago, a Federal judge in Nevada vacated Apex’s permits for the Searchlight Wind project in Nevada.  See Bundorf v. Jewell, No. 2:13-cv-00616-MMD-PAL (Oct. 30, 2015).  One of the reasons cited in the court decision was the failure to assess potential threats to golden eagles.  The litigation began in 2013, and the lawsuit was brought by citizens and environmental groups against the Federal Government for failure to sufficiently explain their findings.  Apex intervened in the lawsuit on behalf of the government and against the citizens and environmental groups.  They did so to defend the sufficiency of federal agency action and argued that the National Environmental Policy Act process had worked.  The court rejected their arguments.  The record demonstrated that both the federal government and the developer (first Duke Power, and then Apex) failed to account in any reasonable manner for the golden eagle nesting and migration impacts, among other deficiencies.  As a result, Apex lost its permits and both it and the government will have to begin the process again.

In this case, it does not yet appear that Apex has considered the impact on the Eastern Golden Eagle or of the federal laws protecting it in its unique and narrowly focused winter migration and nesting area, especially considering its “small and potentially vulnerable population.”  The siting of a wind farm in this area has the potential to be catastrophic for this unique population of a protected and beloved species.  Animal populations including whole species east of the Mississippi have been decimated with expansion.  This one – both beautiful and symbolically important to the nation – should not risk being lost by placing turbines at its door.

Please see the following resources:

Virginia DGIF:  http://www.dgif.virginia.gov/wildlife/birds/golden-eagle/

West Virginia University Golden Eagle Movement map: http://katznerlab.org/golden-eagle-tracking-maps#/i/12

Wildlife Center of Virginia/Tracking the Golden Eagle: http://wildlifecenter.org/news_events/news/tracking-golden-eagle


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