Court allows Kern wind farm mitigation that depended on FAA action
- Martha Bridegam
- Jul 31, 2014
- 2 min read
California's Fifth District Court of Appeal has issued a partial publication order for its June 30 decision upholding the EIR for a wind turbine farm in Kern County's Tehachapi Wind Resource Area. Proponents North Sky River Energy, LLC and Jawbone Wind Energy, LLC proposed to build a wind farm with 116 turbine generators. The plaintiff group opposing their plan, Citizens Opposing a Dangerous Environment (CODE), included the owner of a nearby private airstrip, Kelso Valley Airport. CODE claimed the proposed mitigations in the EIR were insufficient to protect planes and gliders using the airstrip. The court quoted a letter from the airstrip owner's counsel stating that, beyond creating a general risk of collisions, the turbines would block ridges that glider pilots used to pick up enough lift to return to the airport. The main disputed mitigation required the wind farm proponents to obtain a separate building permit for each turbine, and to obtain a "Determination of No Hazard to Air Navigation" from the Federal Aviation Administration (FAA) as a prerequisite for each permit. Alternatives called for canceling the project, moving it, or canceling up to 23 of the turbines. The airstrip owner's counsel argued that a mitigation measure relying on the FAA was ineffective because the FAA had no power to order changes in the turbines, only to approve of them or not, and in the event FAA simply endorsed 102 of the proposed turbines after "auto-screening" the proponent's information rather than substantively investigating the plans. The county argued the FAA was still the relevant expert agency. In the published part of the decision, the appellate court found that as a matter of law the EIR "described a legally feasible mitigation measure." It noted that if the FAA had disapproved of a turbine, the proponents would have had to change its design. Although the FAA couldn't directly order a design changed, it could declare a structure hazardous, creating an obligation for the county to stop construction. Unpublished portions of the decision found the County had the right to choose not to respond to comments submitted more than a month after the comment period closed; that substantial evidence supported the Kern County Supervisors' choice of a mitigation measure; and that the Supervisors did not need to accept either the environmentally best alternative offered or the one the airport sought. The case is CODE v. County of Kern. The online docket noting the partial publication order is at http://bit.ly/1lIlJ85. The opinion is at http://www.courts.ca.gov/opinions/documents/F067567.PDF.