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Tribe-backed wind farm hits snag over GSA enviro review

A proposed Illinois wind farm backed by a California tribe ran into a potential roadblock on Wednesday when a federal judge ruled that its pivotal contract with the U.S. General Services Administration wasn’t exempt from a federal review of environmental impacts.

Siding with property owners who sued claiming the 123-turbine Walnut Ridge Wind Farm is a blight on the area in northwestern Illinois, U.S. District Judge Michael M. Mihm rejected the GSA’s argument that its contract to purchase power from the project qualified for an exclusion from the National Environmental Policy Act.

The finding marks another setback for the long-delayed project owned by MG2 Tribal Energy LLC, a joint venture between Minnesota-based Geronimo Wind Energy LLC and the Mesa Grande Band of Mission Indians. The two-page order came immediately after oral arguments and gave only an outline of Judge Mihm’s ruling, which he said he would flesh out in a written opinion by May 22.

“[T]he court will rule that GSAss action in determining the application of an automatic categorical exclusion in this matter was arbitrary, capricious or otherwise not in accordance with the law, and the court will remand the matter to GSA for further action,” Judge Mihm wrote.

The GSA announced in October that it signed an agreement to purchase a majority of the power to be produced by the 210-megawatt wind farm, saying the move put it on track to meet the Obama administration’s goal for federal agencies to obtain 20 percent of their power from renewable sources by 2020.

But more than two dozen property owners near the 14,000-acre site sued in January, arguing that the GSA’s central role in the project requires the agency to conduct a review of its environmental impact on the surrounding farmland and ecosystems.

The plaintiffs complained that the 500-foot-tall turbines would create “incessant and annoying” noise, destroy scenic views, hurt deer and bird populations, increase mosquito problems by killing off bats, interfere with farming operations, and create excessive dust from access roads, among other consequences.

Geronimo and its partners countered in a motion to dismiss the suit that the GSA’s contract didn’t amount to a “major federal action” subject to NEPA review because the contract didn’t give the agency outright control over the project.

While Judge Mihm rejected this stance on Thursday, the order did not go entirely in the plaintiffs’ favor. The judge denied their bid for a temporary restraining order halting any work on the project, but only based on the defendant’s pledge that they would give 60 days’ notice before beginning construction.

The judge added that the plaintiffs could renew their bid for a restraining order at any time, saying they had “established a reasonable likelihood of success on the merits” of their claims.

Michael Iasparro of Hinshaw & Culbertson LLP, who represents the plaintiffs, told Law360 on Friday that it was unclear at this point how the narrow ruling would play out, stressing that the judge’s brief order only declared the GSA’s exclusion determination was wrong.

“That, to us, means [the GSA has] to go the next step and complete at least an environmental assessment, if not an environmental impact statement,” he said.

An attorney for Geronimo did not immediately respond to a call seeking comment.

The plaintiffs are represented by Richard S. Porter and Michael F. Iasparro of Hinshaw & Culbertson LLP.

Geronimo and MG2 are represented by James R. Griffin of Schain Banks.

The GSA is represented by Gerard A. Brost and Peter K. Dykema of the U.S. Department of Justice.

The case is Hamrick, et al., v. U.S. General Services Administration, et al., case number 1:15-cv-01023, in the U.S. District Court for the Central District of Illinois.

–Editing by John Quinn.