Judge Tosses Out Suit Against Ocotillo Wind Project

The site of the Ocotillo Express Wind project, before construction started. | Photo: Larry Hogue

One of seven lawsuits prompted by Pattern Energy's 315 megawatt Ocotillo Express Wind Energy Project, in western Imperial County, was dismissed last week by a U.S. District Court judge who maintained the plaintiff had not shown it had standing to sue. The suit, Community Advocates for Renewable Energy Stewardship (CARES) v. U.S Department of the Interior et al. was filed May 14 in U.S. District Court in the Southern District of California.

The controversial Ocotillo Express Wind project, now under construction, will place 112 450-foot turbines on more than 12,000 acres of federal lands adjoining Anza Borrego Desert State Park.

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CARES' suit charged that the interior Department had improperly approved Pattern energy's right of way on BLM lands, due the Pattern's failure to provide accurate maps and design specs for the project. The plaintiffs also charged that BLM approved the project illegally despite the site not meeting minimum wind speed requirements, and that the project violates environmental justice protections under federal law.

In his order, dated September 25, District Court judge William Q. Hayes held that CARES had not shown it had standing to sue on the project. Standing is the legal term describing the degree of connection to a case a potential plaintiff must have in order to sue. Generally, in order to have standing, a person must be able to demonstrate that the action she wants to stop in court will cause her harm. In environmental cases involving development on public lands, standing is often established by a group's citing members who enjoy using and recreating on the lands at issue.

Hayes held that CARES hadn't established the group's standing sufficiently. In his ruling, the judge indicated that more thorough preparation on CARES' part might well have kept the case alive:

In this case, Plaintiff CARES is an organization of unknown purpose and largely unidentified membership. One CARES member has been identified on the record; it is Plaintiff's counsel who states that he is a "part or full-time resident of Ocotillo, Nomirage or Coyote Wells, and/or [a] property owner" and that "CARES members have recreated and used the Project Area for over three decades." [Plaintiffs' Counsel] Pate does not indicate where he lives in proximity to the [Ocotillo Express] project, where and when he has recreated in that area, whether he has "concrete plans" to revisit that particular area in the future, or any nonspeculative injury he has suffered as a result of construction of the project.... Pate's declaration fails to "demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief."

The project still faces pending lawsuits by the Quechan tribe, the Desert Protective Council, and joint suits by Protect Our Communities Foundation, Backcountry Against Dumps, and Boulevard-area activist Donna Tisdale. Complaints have mounted by Ocotillo residents over wind-blown dust coming off the construction site, and locals charge that Pattern is building roads several meters wider than allowed under the terms of its permit. On Saturday, National Public Lands Day, a number of protesters gathered near the construction site for a "Funeral for the Death of the Desert" gathering. According to the East County Magazine, the protestors brought kites to the gathering and offered children in attendance a dollar for every minute they could keep a kite aloft. The prize went unclaimed, which protestors said underscored the low wind resources at the site.

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