April 4, 2015
Colorado

Legal action taken against county, NextEra Energy

By Lindsey Harrison | The New Falcon Herald | Volume No. 12, Issue no. 4 | April 2015 | www.newfalconherald.com

On March 5, the El Paso County Property Rights Coalition filed a lawsuit against the EPC Board of County Commissioners and NextEra Energy Resources regarding NextEra’s amended wind farm project. Eric Henderson, Donna Bryant, Laura Wilson and Joan Wilson, members of the EPCPRC, are named as plaintiffs in the lawsuit.

The BOCC approved the original Golden West Wind Energy project in December 2013, when Fowler Energy owned the project; NextEra purchased it later that month. The original plans included 3.75 miles of high-voltage transmission lines that would be buried, according to the February issue of The New Falcon Herald.

At the Feb. 5 BOCC meeting, NextEra presented its proposed amendments: All of the transmission lines would be overhead – none would be buried. The commissioners unanimously approved the amendments.

According to the lawsuit, the BOCC “erred and abused its discretion and exceeded its jurisdiction” when it approved the amended project. The lawsuit also claims the BOCC violated the plaintiffs’ state constitutional rights to due process of law by censoring the speech of individuals during the public comment segment of the Feb. 5 BOCC meeting.

The lawsuit also claims that the BOCC was acting under coercion and duress because of NextEra threats demanding that the commissioners approve the project.

According to the lawsuit, NextEra strategically and incrementally circumvented the plaintiffs’ rights by seeking approval of the plan and then seeking amendments to that plan to avoid cumulative opposition to the overall project.

Additionally, the lawsuit claims that NextEra violated the plaintiffs’ state constitutional rights of due process of the law by threatening legal action against the county and abandoning the project altogether, if the amendments were not approved.

Laura Wilson said the EPCPRC had two options to proceed with the lawsuit. If a single judge heard the suit and made a ruling, it could push the court date out for eight months to a year, Wilson said. Meanwhile, NextEra could continue working on constructing the wind farm.

The other choice is a public impact hearing, where three judges hear the suit, she said. The plaintiffs agreed to that option, which means the lawsuit will be heard in about three to six weeks. “We chose the public hearing because these are three seasoned judges, and they have dealt with land use complaints before,” Wilson said. “It could be good or it could be bad. If the decision was overturned, NextEra could no longer put the lines overhead. They would have to revert to the original plan.”

On March 10, 187 people gathered at the Falcon Fire Protection District Station No. 3 for a meeting held by the EPCPRC. Henderson acted as the spokesman for the EPCPRC, and said the purpose of the meeting was to inform the community about the process thus far, including the purpose of the coalition and the language of the lawsuit.

“One of our chief complaints is that our voice has not been heard; and, when in a public forum we asked for our voice to be heard; we were severely limited,” Henderson said. “We want our elected officials to represent us and to respect our property rights. We didn’t start this fight.”

The EPCPRC has also begun the process of filing an injunction, which would stop NextEra from working on the project until the lawsuit was resolved, Wilson said. Their attorney advised the plaintiffs to create a list of stipulations for negotiating with NextEra’s attorneys to prevent the injunction from going forward, she said.

“We did provide a list of stipulations to our attorney, and he forwarded that on to their attorney; but we have not heard back yet,” Wilson said. “There has been no response.”

David Gil, NextEra project manager, said the company is aware that a lawsuit has been filed. He did not want to comment on the situation.

The highest priority item among the nine stipulations is that NextEra agree to follow the original development plan that the BOCC approved Dec. 19, 2013, she said. Wilson said she and the other plaintiffs are adamant about moving forward with the injunction.

The EPCPRC will continue to meet weekly to update its members and the community about progress with the lawsuit, Henderson said.

“We don’t want one dime from this lawsuit,” Wilson said. “We just want to protect our property rights.”