Thursday, December 14, 2006

Judge Dismisses Altamont Pass Wind Turbine Lawsuit

A judge in Alameda County California has dismissed a lawsuit against owners of the wind turbines located in the Altamont Pass. The lawsuit made waves in the renewable energy community back in 2004 when it was originally filed because of the novel claims alleged by the plaintiffs. The new decision resolves a number of lingering issues related to the ability of private individuals to bring claims under state environmental laws.

The Center for Biological Diversity (CBD) filed a complaint against owners of the wind turbines located in the Pass in November, 2004. Altamont Pass, which was one of the first locations in the U.S. to be developed for commercial wind power, is notorious for its unusually high level of bird moralities. The projects in the Pass include a large number of older, lattice tower turbines, which are believed to pose a much greater threat to birds than modern tubular towers (in large part because the the lattice towers provide attractive perches for raptors). The 2004 CBD lawsuit (PDF) claimed, among other things, that the Altamont turbines had killed 880 to 1,330 golden eagles, hawks, owls and other protected raptors each year for the past 20 years, in violation of California Fish and Game Code provisions, the federal Migratory Bird Treaty Act and the Bald Eagle and Golden Eagle Protection Act.

The plaintiffs asserted several novel theories of law, claiming that violations of these regulations and statutes amounted to "unfair business practices." In an amended complaint, they also alleged that the turbines owners were violating the "public trust" by taking wildlife that belonged to the residents of California.

As we reported back in the winter of 2005, the Alameda County Superior Court originally allowed the action to proceed, concluding, among other things, that the plaintiffs had adequately alleged a property interest in wildlife, which were held in trust by the public. At the time, the ruling sparked a heated debate in legal communities about the scope of the public trust doctrine, and whether there was a private right of action to sue for damages to property held in public trust. The court also allowed the unfair business practices claims to proceed despite the fact that Prop. 64 had recently amended California's Unfair Competition Law to preclude private suites brought on behalf of the public where there was no loss of "money or property."

In October of this year the same Alameda County court dismissed the case after considering additional briefing by the parties (link to text images of decision). The court considered new case law on Prop. 64, and concluded that the plaintiffs did not have standing to sue because they had not established that they had "lost money or property as a result of unfair competition." The court found that the alleged damage to wildlife held in public trust did not rise to the level of lost "money or property" as contemplated by California's unfair business practice law. The court also rejected claims based on the alleged destruction of public trust property, ultimately holding that there was no private right of action to sue for such damages. The court concluded that such claims must be brought by the State, and not individual private parties.

A press release issued by the Center for Biological Diversity in October indicates that the plaintiffs were considering an appeal, but court papers do not show that an appeal has been filed.

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