Wind Farm Won’t Buckle Amid Concern for Birds

BAKERSFIELD, Calif. (CN) - Concerns for golden eagles and condors will not interrupt construction of a 300-megawatt wind farm in Kern County, Calif., a judge ruled.

Superior Court Judge William Palmer found Tuesday that Kern County's Board of Supervisors did not violate the California Environmental Quality Act (CEQA) by certifying North Sky River and Jawbone Wind Energy's environmental impact report in September 2011.

A federal judge similarly declined in January to stop project developers from building an access road to the wind farm across federal land.

The Center for Biological Diversity is unhappy with the ruling but has not yet decided whether to appeal, biologist Ileene Anderson told Courthouse News.

"We got the ruling and were just really disappointed," Anderson said in an interview. "North Sky's turbines have already killed at least one golden eagle, so it's really concerning."

Anderson's group had partnered with Sierra Club and Defenders of Wildlife to sue the Board of Supervisors in March 2012, claiming the impact report did not incorporate enough protections for endangered birds like the golden eagle and California condor.

They also said the report did not consider a reasonable range of project alternatives, include enough mitigation measures, or adequately explain why the county rejected curtailment - shutting down turbines at certain times - as a way to reduce bird fatalities.

In a separate July 2012 complaint, the groups had argued that the Department of Fish and Game violated CEQA by issuing North Sky an incidental take permit and approving streambed alterations without analyzing the environmental impacts.

The massive facility, which includes the Jawbone and North Sky wind farms, spans 13,535 acres of privately owned land at the base of the Tehachapi and Piute mountains in the southern Sierra Nevadas. It went online in December 2012 in time to qualify for renewable energy tax incentives, and can generate around 300 megawatts of clean energy.

In their opening brief, the environmentalists pointed to the soaring bird mortality rate at the Pine Tree wind farm, which is near North Sky, to show that North Sky's turbines threaten the lives of birds and bats.

The county defended the wind farm in its own opening brief, arguing that the impact report included adequate data about the project's potential impacts to local wildlife. It also pointed out that 24 of the project's 83 mitigation measures established protections for birds and other animals.

Kern also claimed that it rejected curtailment as a mitigation measure because it is economically infeasible, would hurt profits, and is unproven as a method to reduce bird fatalities.

Judge Palmer sided with the county Tuesday, and denied the plaintiffs' petitions for writs of mandate.

"The court has reviewed the supplemental briefs on the issue of curtailment, and upon that review, and further reflection, determines that respondent [Kern County] complied with both the letter of the law and the spirit of CEQA," Palmer wrote in a brief docket entry.

He added that, "although the brief of Jawbone Wind Energy presents relevant arguments as to wind energy, it did not directly address the curtailment issue in the context of CEQA."

Attorneys for Kern County and Jawbone must now "prepare an order and judgment as necessary consistent with the Court's ruling," the judge said.

Biologist Anderson disagreed with Palmer's conclusions that North Sky's impact report was adequate under CEQA.

She said Kern County could have required the project developers to include more adequate safeguards to protect birds, but chose not to.

"We're disappointed that the county wasn't more aggressive with trying to prevent its natural heritage from conflicting with renewable energy," Anderson said. "We all want renewable energy, but the county is really behind the times with recent and creative ways of avoiding conflict with wildlife."

Anderson said she is "upset" that Palmer found in favor of the county even though the turbines already killed one golden eagle, and there are more golden eagle nests on site.

"I'm just petrified that they [the turbines] are going to nail more birds up there," she said. "It's very problematic. We were hoping the judge would see that, but I guess not."

Defenders of Wildlife was represented by Babak Naficy of San Luis Obispo. Naficy served as lead counsel for the environmental groups.

Center for Biological Diversity was represented by in-house counsel Lisa Belenky of San Francisco.

Sierra Club was represented by Matthew Vespa with its Environmental Law Program in San Francisco.

North Sky River was represented by George Caplan and Kristopher Davis with Drinker Biddle & Reath of Los Angeles, and co-counsel Zachary Robert Walton with the SSL Law Firm in San Francisco.

Jawbone Wind Energy was represented by Philip Rudnik of Bakersfield.

Kern County was represented by deputy city counsel Charles Collins. Calls to Collins seeking comment were not returned.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit