By Miriam Raftery
April 2, 2014 (McCain Valley) – U.S. District Judge Janis Sammartino has issued a ruling denying summary judgment sought by the Protect Our Communities Foundation, Backcountry Against Dumps and Boulevard resident Donna Tisdale. The plaintiffs had sought to block construction of Iberdrola’s Tule Wind project in McCain Valley, a ruggedly beautiful federal recreation preserve in San Diego's East County. The court also granted Tule Wind and the federal government’s cross motions for summary judgment.
“Our attorney is recommending an appeal of what I describe as Judge Sammartino’s basic rubber stamping of the Bureau of Land Management’s biased and weak support for Iberdrola’s Tule Wind project,” Tisdale told ECM. She added that she, too, is recommending an appeal, though that decision will be up to the boards of directors of the two nonprofits.
Tisdale believes the ruling contradicts or is not supported by the administrative record for the project. For example, she noted, the BLM never analyzed impacts of 3 megawatt wind turbines, after it cut the total number of turbines by 33 out of concern for golden eagles and allowed Iberdrola the option of using larger 3 MW turbines.
The judge rejected arguments that the BLM had failed to adequately assess risks ranging from noise to electrical pollution/stray voltage.
Judge Sammartino also rejected plaintiffs’ argument that the BLM should have considered alternatives that were not restricted to utility-scale options, but should also have assessed distributed generation such as rooftop solar.
“As Tule points out, the eligibility of distributed energy installations for renewable energy credits remains unclear, such that the regulatory hurdles to widespread development of rooftop solar that BLM identified in the EIS may continue to exist today,” the Judge wrote, among other arguments addressed. The judge also voiced belief that distributed generation would fall short of meeting California’s goal of having 33% of its electricity powered by renewable sources by 2020.
The Judge also cited BLM’s goal of approving 10,000 MW of renewable energy projects on public lands by 2015—a goal that would be incompatible with the rooftop solar model –even though rooftop solar would have far fewer negative environmental impacts.
The court also rejected plaintiff’s demand that the BLM evaluate the life cycle of greenhouse gas emissions and savings for the project, noting that such evaluation would be “speculative.” There is no requirement currently for manufacturers to tell the government how much energy is used in the manufacturing and shipping for turbines, for instance.
Plaintiffs had also argued that Iberdrola was advised in a letter from U.S. Fish & Wildlife Service to obtain a take permit for eagles for the project, but the company has not done so.
“Although the Court is deeply troubled by the Project’s potential to injure golden eagles and other rare and special-status birds,” the Judge concluded, “the Court nonetheless agrees with Tule and federal defendants that BLM was not required to obtain permits…prior to granting Tule’s right-of-way application.”