By Nadin Abbott
September 8, 2012 (San Diego)—There was tension in the air as the two legal teams got ready to present their case before District Judge William Q. Hayes.
Community Advocates for Renewable Energy Stewardship (CARES) lawyer, William Pate, observed, “This case is not about energy policies or government programs, it’s about the rule of law.” Pate argued that the government has to be ruled by laws, and that “it is no more complicated than that.” He also argued that government agencies, in this case the Bureau of Land Management, are run by people and that people make mistakes.
This case hinges on the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA).
According to Pate this case has not met the minimum standards required by the Acts, in either technical data, or openness. So far, Pattern Energy has disturbed about 300 acres of desert land, and it appears the project will consume much more desert than was allowed under the approval granted. The wind developer, Pattern Energy, claims the project is in compliance, in part, because over 11 variances have been issued to change the scope of the project, including relocating numerous roads and turbines sites, and moving the SDG&E substation after grading was already done.
Most critically, Pattern has not provided any evidence the project was engineering to California standards by a structural engineer to develop the plans for foundations of the massive towers, each nearly 450 feet tall, including blades roughly the size of football field. Pattern is required to do so, but the only materials that Pattern Energy and the BLM rely upon are soils reports and geo-technical data, Pate said.
The topographical maps that were required to turn in by law were not done; maps consisting of satellite images that were provided are not usable, he contended. The maps are not to the standard required by law, and the public still to this day cannot accurately identify where the turbines will be sited, or the project boundaries for that matter.
Further, Pate contended that the towers are placed too close together where they will not maximize the ability to capture wind. But far more damning, this is a class 2 wind site. BLM needs a minimum of class 3 for consideration, per Federal standards, he revealed.
Pate also argued that Pattern has violated the American Recovery and Reinvestment Act. “They could have done it by the book,” but instead they accelerated their program by a full calendar year, he argued.
Pattern has sought sanctions against CARES after the lawsuit was filed. Pate contended that the only reason Pattern is asking for sanctions against the plaintiffs is “to chill any dissent. It is a guerrilla defense,” used when they have nothing better to prove their case, he said. According to Pate, Pattern is trying to intimidate the citizens of Ocotillo “who have had the temerity to come to court.”
Finally, he reminded the court that this zone is in a high earthquake area with a major fault line very near the turbines and is also in federal designated flood zone. Both types of natural disasters which have happened within the last three months.
The lawyer for Pattern, Marissa A. Piropato, came next. Her argument hinged on the fact that plaintiffs have not presented enough evidence of immediate harm to CARES members or themselves. Piropato also argued the project is of great public benefit, she argued, using numbers that do not add up. Piropato argued “There will be 112 turbines, producing 315 megawatts.” This will translate for energy for 94,000 homes. However, simple math reveals 112 wind turbines, with a maximum production of 2.3 megawatts each, can only produce a maximum of 257 megawatts of power, not 315 megawatts as the BLM has misrepresented again in a Court of law. The net capacity of the wind farm, at 300 households per megawatt, will only produce enough power for less than 20,000 households in San Diego County—a populous of 3.1 million—at a cost of over $600 million and the destruction of a 19 square miles of critical and sensitive desert property.
Piropato also challenged the claim by CARES that BLM is not doing its job. As she put it, “BLM is actively monitoring on the ground activity.” This was contradicted by the fact a third-party, private company, paid by developer Pattern Energy, Dudek serves as the project monitors, and this entity does not have qualified engineers on its staff. Of course, without proper engineering plans and specifications, which haven’t been prepared for this project, the monitors have nothing from a design standpoint to ensure the project is being constructed “per plan.”
Piropato also argued that nowhere in the record did they find evidence that CARES, or its members, participated in the administrative process (hearings). Moreover, what the plaintiff is challenging is the right of way implementation. She insisted that there are no violations, and the process is working.
Moreover, according to Piropato the claim that there is not enough wind speed is countered by maps from the National Renewable Energy Lab, however the maps have had the latitude and longitude lines removed to obscure the precise location of this project down at the bottom of Mountain Springs Grade where prevailing winds are often blocked by the mountains. As to the mapping requirements, Pirapoto claims Pattern Energy satisfied this requirement by submitting GPS data to the BLM, which is equivalent by law, she claimed. None of the GPS data has been made public.
She also stated that as far as the engineering reports, the only evidence Piropato could point to was a preliminary geotechnical report submitted in 2010. There was no evidence this report or any subsequent soils investigations were submitted to a structural engineer to develop the foundation design, which Pate argued is the cheapest and weakest foundation system available for wind turbines that is only suitable in areas with high strength soils, not desert sand washes in an earthquake and flood zone. Piropato claimed moving the Substation after grading work was done to protect cultural resources.
Stan Borand from Pattern then spoke. He argued that CARES suggests the geo-technical work was not done, but stated that it has been completed. But, again there was no evidence of engineering by a licensed structural engineer for the structural concrete foundations. Nonetheless, Borand insisted the towers are safe even in an earthquake zone.
Borand added that the mapping data was done using GPS. He said that this data is in the hands of the BLM, adding, “CARES wants to measure it themselves, as citizen enforcers to duplicate Pattern and BLM work.”
As to contentions that the roads are too wide, he said that “the plaintiffs have ignored the fact that collection circuits are authorized, how you end up with wider roads.” Of course, apart from going out into the desert with a measuring device, there is no way to verify the claimed road widths or the underground electrical lines because plans were never submitted as required from engineers in the appropriate disciplines, civil or electrical.
The wind speed is at the heart of Pattern’s issue. “That only projects that are class 3 or higher is fiction,” Borand stated. This is, according to Borand, not a BLM requirement.
Borand finally went into the capital investment. Pattern already has invested $240 million into the project. They are waiting on loans hinging on the outcome of legal action, he revealed. “The lenders are interested in this court’s view and this motion.” In the end, however, Pattern Energy has applied for production tax credits for the US Dept. of Treasury to issue a cash grant payment out of the Recovery Act to subsidize this project.
Finally he reinforced Piropato’s argument that CARES did not participate in the process [though some CARES members have participated] and that they were all but timely in participating in the regulatory process.
Pate had a chance to rebut and rebut he did. Pate questioned the number of households that will be served by the project. (There has been a steady decrease in the estimated household estimate throughout the life of the project, and output is not measured based on the maximum capacity of a system, but the actual net operating capacity, which the developer has not provided.)
He addressed the question of standing, as he has frequenting the area for over 30 years and currently owns a residence there.
He also emphasized how the area affected by Pattern cannot be used. Pate emphasized that just because you have structures hundreds of feet tall in the middle of nowhere, people are still there every day.
He argued that the irreparable harm are the freeways carved into the desert and the hydrologic damage, in an area that is prone to floods. Finally Pate again reminded the Court that there were no maps or engineering designs as required by law. The map provided is useless, since it lacks reference points and is not to a required scale. There is no way for the public to know what are the project boundaries from this map.
He closed by reminding the judge that they filed their first TRO in June. He also mentioned at the end that the Judge has already warned Pattern and the BLM to proceed at their own risk.
No decision was issued. So now the wait starts for such.