JUDGE RULES AGAINST POWERLINK OPPONENTS; PLAINTIFFS PLAN APPEAL

By Miriam Raftery
July 2, 2011 (San Diego’s East County) – U.S. District Court Judge Roger T. Benitez has denied a motion for summary judgment by three East County groups which sought to halt construction of Sunrise Powerlink transmission lines.  Plaintiffs had argued that environmental review by two federal agencies, the Bureau of Land Management (BLM) and Fish & Wildlife Service (FWS), was inadequate and violated federal law.

Among other things, the suit argued that the agencies violated federal law by approving the project before some surveys of endangered species were conducted and by failing to consider the scope of connected wind farm and other projects, opening tens of thousands of acres of public lands open to energy development projects without adequate review.

“Our attorney has filed notice of our intent to appeal to the 9th Circuit Court of Appeals,” plaintiff Donna Tisdale told East County Magazine last night. Tisdale filed the legal action along with the Protect Our Communities Foundation, East County Community Action Coalition, and Back Country Against Dumps.

Tisdale expressed disappointment in the decision and suggested political influences may have been at work. “It looks like the 4th judge in our case was the one SDG&E had been waiting for. Judge Benitez’s demeanor in court left no doubt that he would be supporting the 900 pound gorilla in the room,” said Tisdale.“San Diego is a company town and Sempra/SDG&E is that company. Their tentacles, extensive donations, and political influence reach far and wide.”
 

SDG&E failed to respond to an ECM request for comment on the decision. However an San Diego Union-Tribune article published yesterday quotes SDG&E spokeswoman Jennifer Ramp as follows: “With yesterday’s decision, the Sunrise Powerlink has prevailed in every legal challenge that has been levied against it. We expect that the few remaining legal challenges will be deal with as well and work on the project will proceed on schedule.”
 

In court, attorneys for SDG&E and the federal agencies had contended that no laws were violated.

Judge Benitez, in his written opinion, found that plaintiffs did not challenge a final decision by the Department of the Interior Board of Land Appeals (IBLA) regarding the BLM issues, and that plaintiffs therefore lost legal standing in federal court regarding the BLM issues. (Plaintiffs filed suit in federal court while an appeal was still pending with the IBLA, which ultimately upheld the BLM’s actions.)
 

But Tisdale expressed doubt over the impartiality of the federal agency’s process. “I also believe that their (SDG&E/Sempra Energy) former lobbyist, David Hayes, now a high-ranking Department of Interior appointee, played a role in Sunrise approvals, despite denials. Regardless, the law is on our side on this case, so we will seek relief at the 9th Circuit.”
 

As for the claims against the Fish & Wildlfe Agency, Judge Benitez found plaintiffs’ claims moot since surveys were later done after the project was approved. He also requested an argument by plaintiffs to consider the “entire” project including the construction of additional generation facilities and future transmission expansion and renewable energy projects, including the Tule Wind Project in McCain Valley and the Crestwood Wind Project on the Campo Indian Reservtion.
 

The Judge did find that those other projects are “connected actions” (rejecting an SDG&E claim to the contrary). However, he stated, “There is no case law or other authority, however, showing that this almos means the FWS must include other projects that are “connected” to the identified project in its analysis.” He found that requirements to identify “connected” projects apply to the BLM, but not to the FWS and noted, “If C ongress intended for the FWS to analyze “connected” actions during its formal consultation project under the ESA [Endangered Species Act], Congress would have stated so, just as it did for the BLM.”
 

Judge Benitez made no findings on the merits of the plaintiffs claims that federal agencies failed to adequately assess fire dangers, environmental harm, cultural impacts or other prospective damage from the 117-mile line which SDG&E has contended is needed to meet future energy needs (an assumption opponents have also challenged), declaring those issues moot on procedural grounds.
 

Laura Cyphert, co-founder of the East County Community Action Coalition, has suggested Judge Benitez dodged the core issues. In a Union-Tribune article, Cyphert stated that the decision “was really based more on a technicality than the merits of the case.”