Kern County and environmentalists filed opening briefs in a court fight over a proposed 300-megewatt wind farm – part of a national legal battle in which environmentalists claim that “clean energy” wind farms pose their own threats to the environment.
North Sky River Energy wants to build up to 116 wind turbines on 13,535 acres of privately owned land northeast of Tehachapi in the southern Sierra Nevadas.
The Sierra Club, the Center for Biological Diversity, and Defenders of Wildlife sued Kern County in March 2012, in Superior Court.
The environmentalists claimed the Kern County Board of Supervisors violated the California Environmental Quality Act (CEQA) by approving the North Sky Wind Energy project despite an inadequate environmental impact report.
The groups sued again in July, claiming the Department of Fish and Game violated CEQA by issuing North Sky an incidental take permit and approving streambed alterations without considering environmental impacts such as harm to golden eagles and condors.
A federal judge refused 2 weeks ago to bar the developer from building a service road across federal land to the site of the wind farm.
Deputy county counsel Charles F. Collins declined to respond to plaintiffs’ claim that the county’s environmental impact report is legally deficient.
“That’s really the heart of the matter,” Collins told Courthouse News in an interview. “I don’t want to litigate it in the press. Let the court read everything in the administrative record and then make a decision.”
Collins defended the county and the developers in his opening brief: “The project challenged here is exactly the type of clean, renewable energy project that local, state, and federal energy policies are designed to foster. It underwent rigorous environmental review and active public debate. The environmental analysis spanned three years and was directed by a Kern County planning staff well-versed in wind energy,” Collins wrote.
Altogether, there would be two wind farms – the Jawbone and North Sky – at the base of the Tehachapi and Piute mountains.
The Kern County Board of Supervisors approved the project and certified its EIR in September 2011.
Superior Court Judge William Palmer rejected the plaintiffs’ request for a preliminary injunction in August last year.
Collins told Courthouse News that Palmer denied the plaintiffs’ motion for stay because of the public good.
“He found implicitly that a stay was not in the public interest. He waived a formal order though, and ruled from the bench, which the parties agreed was sufficient,” Collins said.
In their opening briefs, the parties debated the project’s effects to birds, and the reliability of data from a bird mortality study.
Plaintiffs’ attorney Babak Naficy, of San Luis Obispo, wrote in her brief that the draft EIR did not include enough data about endangered bird species such as the golden eagle and California condor.
Plaintiffs, citing the state Department of Fish and Game, claim that endangered condors will be particularly at risk from “turbine strikes” because the area is condor habitat.
They also claim the final environmental impact report failed to properly analyze data on another wind farm, Pine Tree Wind Development, which found that Pine Tree had one of the highest mortality rates of protected species in the nation.
In its comments on the draft EIR, Fish and Game argued that North Sky’s proximity to Pine Tree and the facilities’ similar topographies make it likely that North Sky’s bird mortality rate will be at least as high as Pine Tree’s. Fish and Game warned that it might even be higher because North Sky includes a riparian habitat and an important spring migratory corridor, according to the plaintiffs’ brief.
The plaintiffs acknowledged that, in light of the Pine Tree data, the final EIR revised the draft EIR’s original conclusion that North Sky would have less of an impact to birds than other wind farms, and admitted that these impacts will likely be high.
But the groups claim the final EIR “did not meaningfully analyze the significance of the impacts on avian species … or re-evaluate the proposed mitigation measures and alternatives in light of the new data.”
Kern County defended the wind farm in its own opening brief, arguing that the draft EIR included adequate data on birds.
The county says it conducted several site-specific wildlife studies, using Fish and Game protocols, including bird use count surveys at 18 different locations, riparian bird surveys that noted the presence of the willow flycatcher, and raptor nest surveys that identified golden eagle nests on site.
The county claims the plaintiffs are simply ignoring these surveys, which are “crucial to evaluating onsite conditions.”
“When looked at as a whole, the site-specific surveys establish substantial evidence in the record supporting county’s conclusion that the EIR included a reasonable, good-faith disclosure and analysis of project’s impacts, as required by CEQA,” the county says in its brief.
The county claims it “carefully considered” the Pine Tree report when analyzing impacts to birds, but determined that its conclusions were misleading.
“Only 7 of the 96 bird fatalities detected at Pine Tree were attributed to turbine collision impacts,” the county says in its brief. “Five were attributed to motor vehicle strikes, with the remaining 84 classified as ‘unknown.’ The Pine Tree report itself concluded, ‘many of these fatalities were more likely the result of predation or natural mortality than turbine collision.” (Citations omitted).
The county claims it “carefully evaluated the report’s methodology, including a peer review that identified ‘mathematical errors throughout the report,’ all of which was detailed in the FEIR.”
These errors, and the authors’ own warnings about possible inaccuracies in the data, led the county to conclude that the report was not reliable, the county’s brief states.
The parties also sparred over whether the EIR considered a reasonable range of alternatives.
The plaintiffs took issue with alternative C, which proposed to move “up to ” 23 turbines from three areas of the project site.
They claim alternative C’s failure to specify how many turbines would be removed from each area makes it “impossible to accurately gauge the possible benefits of this alternative.”
Kern County claims in response that the plaintiffs fail to grasp “that the project is a zone change; it does not entail approval of a site specific plan.”
Alternative C was designed to determine which areas had the “most sensitive biological cultural resources,” so as to reduce significant impacts to these areas, and need not specify how many turbines would be removed, the county’s brief states.
The plaintiffs also claim that the county did not adequately explain why it called alternative C economically infeasible, in its resolution to reject the alternative. They claim the resolution merely repeated the final EIR’s findings that alternative C would allow the project to meet many of its goals and reduce impacts to air quality and biological resources.
Kern defended its decision by also pointing to the final EIR.
The report found that removing up to 23 turbines would result in “a nearly 20 percent reduction and a commensurate decrease in energy production.” Since this would harm the project’s ability to meet California’s clean energy goals, the county decided the alternative was unfeasible, according to its brief.
The parties also disagree about whether the EIR includes enough mitigation measures.
Kern County claims that 24 of the report’s 83 mitigation measures were adopted specifically to protect birds and other animals. These include placing buffers around riparian habitats, changes in lighting, removing trash to protect condors (which eat trash), and continuing to monitor bird activity after construction is complete to determine if additional mitigation is necessary.
But the plaintiffs claim that many mitigation measures are “vague” and have “no performance standards.”
They also claim the county did not provide “concrete evidence” to support its conclusion that curtailment, or shutting down a certain number of turbines for certain periods of time, was economically infeasible.
Kern said it rejected curtailment because the method is not proven to reduce bird fatalities to nonsignificant levels. It also claims curtailment would interfere with the profits.
The county said it reached this conclusion based on a memo by developer North Sky River, which “makes clear that due to the variable nature of energy production from wind farms, even short periods of curtailment ‘can have a large economic negative on the financial returns of a wind energy facility.'”
The county claims that the plaintiffs’ challenge stems from failure to understand wind zoning in Kern County.
“Petitioners’ arguments display a fundamental misunderstanding of the project approvals. County rezoned the project area with a wind energy overlay and analyzed the potential impacts of installing wind turbines anywhere within the rezoned area – rather than examining a specific layout. The EIR’s analysis is commensurate with this type of approval. … Petitioners’ arguments seek to undermine the entire thoughtful process of wind energy development in the county,” the county’s brief states.
Deputy county counsel Collins told Courthouse News that the project would be “very good” for Kern County.
“It’s good for renewable energy production, good for the current economy, and people’s welfare in more jobs. It’s good for society as a whole,” he said.
A hearing on the petition for writ of mandate is scheduled for Feb. 19.
North Sky River counsel Zachary R. Walton, with the SSL Law Firm of San Francisco, declined to comment.
Emails to defense counsel Kristopher S. Davis, with Drinker Biddle & Reath of Los Angeles, were not returned.
Calls and emails to plaintiff’s counsel Babak Naficy were not immediately returned.
Emails to Bakersfield attorney Mark A. Jones, counsel to real party in interest Philip Rudnik, were not returned.
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