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Feds must still defend blocked Oregon wind farm  

Credit:  By NICK MCCANN | February 27, 2013 | www.courthousenews.com ~~

A Chinese company blocked from building wind turbines near military airspace in Oregon can pursue a due-process claim, a federal judge ruled.

Last year the Delaware-based Ralls Corp., owned by the Chinese company Sany Group, bought four companies that had the rights to build wind turbines in north-central Oregon.

The land where the companies planned to build the turbines sits beside the Naval Weapons Systems Training Facility in Boardman, Ore.

Last September, President Barack Obama said “there is credible evidence” that Ralls, the Sany Group and its owners “might take action that threatens to impair the national security of the United States.”

He ordered the companies to divest all interest in the projects within 90 days, and remove everything from the properties within two weeks of the order.

The companies were also ordered to certify their divestment with the Committee on Foreign Investments in the United States (CFIUS), which asked the company last July to stop its operations.

Ralls challenged that CFIUS order in a federal complaint and later amended its complaint to add Obama as a defendant alongside the committee and Treasury Secretary Tim Geithner.

“At no time has Ralls ever had any opportunity to view, review, respond to, or rebut any evidence that CFIUS, the president, or any person or entity acting on their behalf has obtained, reviewed, or relied upon in reviewing the transaction in question, concluding that the transaction raises national security concerns, issuing the aforementioned orders, and imposing the foregoing extraordinary prohibitions and restrictions,” the complaint states.

The defendants moved to dismiss the five-count complaint, and U.S. District Judge Amy Berman Jackson mostly granted their motions last week.

Ralls can still advance claims that the presidential order violated its due process rights, according to the ruling, which said the claim “raises purely legal questions about the process that was followed in implementing the statute.”

“The court notes that it is not ruling that the due process claim has merit – simply that it is bound to go on to decide the claim on its merits,” Jackson wrote (emphasis in original). “The court will reach that question after further briefing by the parties.”

“It may be that the court will ultimately decide that in the context of a national security decision committed to the president’s discretion, the opportunities provided to the plaintiff here comported with due process, or the plaintiff is not entitled to the reasons,” she added. “Since the matter has not yet been fully briefed, the Court expresses no opinion on those issues.

“The sole question before the court at this stage is whether the statute clearly bars any consideration of plaintiff’s procedural concerns, and the court finds that it does not.”

Ralls failed to show that Obama exceeded his authority and violated the Constitution by treating it differently than other foreign owners of wind farms, the 43-page opinion states.

“This artful legal packaging cannot alter the fact that what plaintiff is urging the court to do is assess the president’s findings on the merits, and that it cannot do so,” Jackson wrote.

“It is important to note that in this case, Ralls did not seek CFIUS approval before it acquired the projects or began construction and installation of the turbines,” she added. “Rather, CFIUS and the President were presented with a purchase that had already taken place and a project that was already underway.”

The court also refused to review an August 2012 CFIUS order that imposed certain interim mitigating measures pending Obama’s review of the transaction.

“That order expired by its own terms and was expressly revoked by the president’s order, and therefore, the court will dismiss those claims as moot,” Jackson wrote.

Source:  By NICK MCCANN | February 27, 2013 | www.courthousenews.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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