News and analysis about energy in California with an eye toward renewables.

Privatizing Public Land For Solar Companies

Critics of opening up public lands to renewable energy development have been known to refer to the process as "privatization," pointing out that once public land is leased to energy companies, that land is essentially no longer public.

ReWire and a handful of citizen activists got a poignant reminder of just how true that is on Thursday.

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At issue is the Genesis Solar project, being built by Florida developer NextEra on 1,950 acres of your California desert BLM land north of Ford Dry Lake, backed by $825 million in loan guarantees funded by your tax dollars.

In early November, longtime desert resident and jojoba farmers Donna and Larry Charpied and the activist group Basin and Range Watch emailed an invitation to ReWire, along with a number of desert residents and environmental activists on all sides of the desert solar issue, to visit to the Genesis project's construction site with BLM staff from the Palm Springs Desert District office. There was significant interest from invitees. After some back and forth coordinating participants schedules, and one abortive date in December canceled due to a BLM scheduling conflict, on December 10 NextEra suggested three possible dates in January for the visit. All involved settled on January 17.

At that point in early December, Charpied provided NextEra with the list of people planning to participate in the site visit. The weeks passed.

A month later things changed suddenly. What had been a public visit to a facility on public lands, prompted by a conversation between the Charpieds, Basin and Range Watch, and the BLM, was suddenly an exclusive NextEra function. On January 13, NextEra's senior director Andrew Siegelstein informed Donna Charpied that the list of participants had been severely restricted. The visit was no longer a public tour for interested parties facilitated by the BLM; it was an invitation-only affair controlled by NextEra.

Aside from the Charpieds, the narrower invitation list as specified by Siegelstein was limited to representatives of the environmental groups Natural Resources Defense Council, Center for Biological Diversity, Sierra Club, Defenders of Wildlife, the Audubon Society, the Nature Conservancy, and the California Native Plant Society.

What's more, participants would be required to sign an agreementbefore the tour that went well beyond the usual safety and liability requirements typical for public visits to hard hat sites. In essence, in order to tour the facility, visitors were going to have to sign what amounted to a non-disclosure agreement, which included provisions such as barring visitors from later discussion of:

information and technology with respect to (i) any means and methods of assembly, manufacture or design, procurement, construction, capacity, and method of operation and (ii) the Premises or the solar project located thereon; information and technology that relate to Company's articles of manufacture, compositions, inventions, engineering services, technological developments, or "know-how"[.]

That, obviously, made it pointless for yours truly to try to persuade NextEra to allow me to attend on behalf of ReWire: I wouldn't have been able to report to you that NextEra's solar power plant would actually harness solar power without running afoul of the agreement, should some lawyer somewhere decide to get picky.

And to be fair, NextEra wasn't expecting representatives from the media to be part of what started out as a public tour. But the agreement's language had a chilling effect even on some of those prospective visitors who aren't members of the press. Donna Charpied told ReWire that the agreement prevented her from attending, saying "What is the point of touring the place if we're bound by confidentiality, providing NextEra with an excuse to litigate any time we say something that they don't like?"

Longtime desert activist Tom Budlong, who has acted as an intervenor in a number of renewable energy siting cases being considered by the California Energy Commission, was one of the participants excluded by NextEra.

"This really gets emotional for me," Budlong told me.

Normally I attempt to stay objective. I was at the site with Basin and Range Watch before any damage was done. It was absolutely untouched pristine desert. Even the off-roaders had not penetrated. A four-wheel-drive road shown on the USGS maps petered out before the trace on the map said it would. We "played" with a shrike who scolded, perched on a distant tree. With difficulty we photo'd the nest she was so concerned about, then quickly left.

[The site is b]utt-up adjacent to designated wilderness. Then the Commission hearings self-confirmed their farcical nature. Then a flood. More confirmation of poor siting. Then fox distemper...

The Genesis site in June 2010, before it was fenced off | Photo © Tom Budlong. Used with permission.

Basin and Range Watch's Kevin Emmerich, one of the original instigators of the visit, expressed wry confusion at his group's exclusion from the invitees -- though NextEra did reverse that decision and extend Emmerich an eleventh-hour invitation on Wednesday afternoon. (Emmerich told ReWire that the onerous agreement, along with the prospect of a full day's drive from his home in Nevada on last-minute notice, would preclude his involvement despite the belated invitation.) "You'd think they'd want to show the place off," said Emmerich. "Aren't they proud of what they're doing there? What do they have to hide?"

NextEra's Communication Director Steve Stengel responded to questions about the sudden shift in the nature of the event by accentuating the positive in an email to ReWire.

We have invited a number of representatives from non-governmental organizations interested in solar development along the I10 corridor to visit the Genesis Solar Project to ask questions and get an update on the project. We have a rather large group that we feel represents a good cross section of NGO's that have expressed interest in Genesis.

When pressed in a subsequent phone conversation on what prompted the shift from a BLM-instigated event to a closed meeting for a few invitees, Stengel basically reiterated the above, adding that some of the invitees' organizations had been critical of NextEra and Genesis in the past. Which is true: activists from both the Center from Biological Diversity and the Sierra Club have lambasted Genesis over the last few years.

For his part, the BLM's Palm Springs-South Coast Field Manager John Kalish confirmed to ReWire that the visit had shifted from a more participatory, community-driven event to one essentially scripted by NextEra, but said that the BLM felt it was best to defer to NextEra on safety grounds, much as the BLM defers to mine operators on public lands.

NextEra's certainly within its rights to control public access to the site, not only to make its liability insurers happy on public safety grounds but to limit potential property losses as well. And having a large group of visitors troop through a hard hat site can be a logistical nightmare.

But in this instance, the difference in group size between those who had originally planned to participate and those who met with NextEra's approval was seven people, myself included. The difference between a dozen visitors and 19 ought to be trivial from a logistical point of view.

It's worth noting, by the way, that NextEra isn't the only solar company seeking to impose its own exclusionary rules in the public commons that is the California desert. ReWire has spoken to a number of people who've been confronted by employees of various solar companies while visiting public lands near solar facilities. Quite recently, solar power blogger Ed Gunther recently ran afoul of security guards at the Antelope Valley Solar Ranch while shooting photographs of the facility from a public highway, an activity protected by law. (To its credit, First Solar did apologize and promise to train its guards better.)

It's one thing to make sure there are fences in place to keep people safe and expensive equipment undamaged. It's another to profit from land you occupy by the grace of the public, while simultaneously treating as impertinent annoyances respectful requests for visits from interested members of the public.

Attempts by firms like NextEra to limit public involvement and education to a hand-picked group of people the corporation deems "acceptable" should be of concern to anyone who cares about the fate of the "public" part of public lands. So should the assumption that public lands' highest and best use is fencing them off for development. Our history of public access to public lands is one of the traditions that sets America apart from its monarchical forebears. That land belongs to all of us -- until the fences go up, and the corporations start picking and choosing who can enter as if they were preserve managers for European royalty.

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About the Author

Chris Clarke is a natural history writer and environmental journalist currently at work on a book about the Joshua tree. He lives in Joshua Tree.
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