| For Immediate Release: October 17, 2006
Contact: Jeff Miller, (510) 499-9185
Judge Dismisses Altamont Pass Bird Kill Lawsuit
San Francisco – On October 12, 2006, Alameda County Superior Court Judge Bonnie Sabraw dismissed a public interest lawsuit that the non-profit Center for Biological Diversity brought to halt the preventable deaths of eagles, hawks, falcons, owls and other protected birds from poorly placed, obsolete, “first generation” wind power turbines at Altamont Pass.
“We support renewable energy, including wind power, as an essential part of achieving the 80 percent reduction of greenhouse gas emissions that scientists say is necessary to avoid the worst consequences of global warming,” said Jeff Miller, Bay Area Wildlands coordinator with the Center for Biological Diversity. “The unacceptable numbers of bird deaths at Altamont are caused by obsolete, first generation turbines that were poorly placed to begin with. The bird deaths at Altamont are preventable and the operators must be forced to resolve this problem. A few intransigent companies should not be allowed to needlessly slaughter wildlife and impede the expansion of renewable energy.”
The lawsuit was filed under California’s Unfair Competition Law (section 17200 of the California Business and Professions Code) and the “public trust doctrine.” Wildlife in California is considered “public trust property,” owned by the people of California, with the state acting as the trustee. In its ruling, the court held that the illegal destruction of public trust wildlife is not the destruction of property for purposes of the Unfair Competition Law, and therefore none of California’s citizens can bring suit under that law when wildlife is destroyed. The court also held that California citizens cannot bring suit under the public trust doctrine to prevent the continued killing of public trust wildlife.
“The court’s ruling conflicts with more than 100 years of California Supreme Court rulings that clearly establish that California’s wildlife is property owned by the people of California,” said Richard Wiebe, attorney for the Center for Biological Diversity. “It also conflicts with California Supreme Court rulings holding that citizens and public interest groups can sue to enforce public trust property rights. The court’s ruling guts citizen enforcement of the public trust in wildlife, leaving citizens without a remedy when corporations destroy the public’s wildlife for private profit.”
“We think the judge got it wrong – the court’s ruling contends that the public has no redress for ongoing harm to wildlife when regulators fail to act,” added Miller. “We call on the California Attorney General and the U.S. Fish and Wildlife Service to enforce our wildlife protection laws. We’re losing an appalling number of rare golden eagles and western burrowing owls at Altamont.”
Wind turbines at Altamont Pass kill more raptors than any other wind facility in North America due to their location on a major bird migratory route in an area with high concentrations of raptors, and also because some of the turbines are obsolete, “first generation” turbines that have since been replaced with more bird-friendly technology. Research by raptor experts for the California Energy Commission indicates that each year Altamont Pass wind turbines kill an estimated 880 to 1,330 raptors, including more than 75 golden eagles, several hundred red-tailed hawks, several hundred burrowing owls and hundreds of additional raptors. The lawsuit alleged that these killings are in violation of federal and state wildlife protection laws such as the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and several California Fish and Game Code provisions.
The Center for Biological Diversity is considering an appeal of the court’s ruling.
The defendants in the lawsuit include FPL Energy, GREP Bay Area Holdings, Green Ridge Power, Altamont Power, enXco, SeaWest Windpower, Windworks, Altamont Winds and Pacific Winds.
Other actions by the Center for Biological Diversity have ameliorated the bird deaths somewhat at Altamont, but more remains to be done. In September 2005, in response to appeals by the Center for Biological Diversity and others of the permit renewals for Altamont Pass, the Alameda County Board of Supervisors adopted new permit conditions for more than 4,000 existing, obsolete wind turbines. The new permits require seasonal shutdowns of turbines in the winter migratory season when bird deaths are particularly high, immediate shutdown of two percent of the wind turbines shown by studies to be particularly lethal to birds, monitoring of avian mortality, the preparation of an environmental impact report in three years to assess the problem of bird fatalities and the most effective ways to reduce them, and replacement of existing wind turbines with fewer, more efficient and taller turbines over the next 13 years.
The Center for Biological Diversity is a non-profit conservation organization with more than 25,000 members dedicated to the protection of imperiled species and their habitats.
More information about the Altamont Pass bird kill issue can be found at http://www.biologicaldiversity.org/swcbd/programs/bdes/altamont/altamont.html.