Altamont wind farm lawsuit moves ahead

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The Center for Biological Diversity filed suit on Nov. 1 against companies operating some 5,200 electricity-producing wind turbines in the Altamont Pass.

The lawsuit alleges that wind turbines in the Altamont have killed thousands of eagles, hawks and owls, and that the failure of wildlife regulators to enforce laws protecting the birds gave wind farm operators an unfair competitive advantage.

The suit was filed the day before the Nov. 2 election, when California voters passed Proposition 64. The proposition limits the rights of private parties to file lawsuits on the public's behalf under California's Unfair Competition Law.

Wind farm operators, including Florida-based FPL Energy LLC and Enxco Inc., argued that with the passage of Prop. 64, the Center had no standing to sue on behalf of the general public.

In a ruling issued Thursday to decide how Prop. 64 applies to the Center's lawsuit and 12 others, Alameda County Superior Court Judge Ronald M. Sabraw agreed. Sabraw said only the state Attorney General or Alameda County District Attorney can file suit against wind farm operators on the public's behalf.

But Sabraw allowed the Center's lawsuit to move forward, because "wildlife is part of the public trust, and the state holds the wildlife for the benefit of the people."

The California Supreme Court has held that any member of the general public has the right to raise a claim of harm to the public trust, Sabraw said.

"The court has held that all of us Californians are being damaged and harmed by the destruction of this wildlife, and the judge recognized there should be a legal remedy for that harm," said Richard Wiebe, a lawyer representing the Center for Biological Diversity.

An attorney for Enxco, Seawest Windpower Inc., Altamont Winds Inc., and other wind farm operators declined comment.

Although the Center's lawsuit has survived one challenge, it could still be dismissed on other grounds at a March 24 hearing.

Wind farm operators are expected to argue that the Center has not incurred any actual damages. The lawsuit seeks restitution of "all money and property defendants have acquired" through unfair competition, and penalties of up to $10,000 for each bird taken in violation of the Fish and Game code. The money would go to the state, not the Center, Wiebe said.

Also next month, the Alameda County Board of Supervisors will hear the Center's appeal of the county's decision to renew the permits of about 3,600 wind turbines in the Altamont.

The Board of Supervisors will take testimony on March 3, and could decide whether to impose new conditions on wind farm operators on April 7.

A California Energy Commission study released in January predicted that deaths of birds of prey in the Altamont — estimated at 881 to 1,300 each year — could be cut in half in three years.

The study recommended that wind farm operators shut down 43 percent to 100 percent of the wind turbines in the Altamont for five months in the winter and fall, and remove 294 to 653 of the machines that kill the greatest number of birds.

In their latest proposal to the county, wind farm operators said they are willing to attempt a 35 percent reduction of bird deaths in the next three years. The wind farm operators propose shutting down one-quarter of wind turbines during a four month period, and temporarily removing or relocating the 100 most lethal wind turbines.

The wind farm operators say they shouldn't be required to meet the 35 percent target if it proves to costly.

If "it becomes obvious that reducing fatalities by this magnitude will drive one or more companies or projects out of business, then the objective for that specific company or companies will need to be modified," wind farm operators said in their proposal to the county.

The conditions the county imposes could govern wind farm operations for the proposed 13-year life of the permits.

"The wind turbine owners are not moving forward, and don't recognize that the times have changed and what they've gotten away with over the past 20 years they can't continue to get away with for another 13 years," Wiebe said.]]>

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