Wind Turbine Owners Not Responsible For Bird Deaths, But Public Agencies Might Be

The California Court of Appeals has dismissed a lawsuit brought by an environmental group which claimed that wind turbines at the Altamont Pass Wind Resource Area in Alameda and Contra Costa counties had killed tens of thousands of raptors and other birds since the 1982. The Alameda County Board of Supervisors was in the process of considering applications to extend and consolidate existing 20-year permits to operate the wind turbines when the plaintiffs sued. The plaintiff claimed that the operation of the wind farm violated state and federal law, including the public trust doctrine – a doctrine which holds that certain resources are preserved for public use, and that the government is required to maintain those resources for the public’s reasonable use. But, the trial court dismissed all claims except for the alleged public trust violation for lack of standing.

The appellate court affirmed, noting that the case was filed against the wrong party. The plaintiffs sued the owners and operators of 5,000 wind turbine generators at the Altamont Pass wind farm. However, the court emphasized that wildlife, including birds, is considered a public trust resource, and that private parties can sue to enforce the public trust. But, such an action (when brought by a “beneficiary”) must be brought against the “trustee” of the public trust – namely, the government agencies (such as the state and federal fish and game departments) charged with the responsibility to implement and preserve the “trust.” Only the trustee has the sole right to sue the owners and operators of the wind turbines for violation of the public trust. A “beneficiary” cannot sue the party that is believed to be harming trust property. In any event, the court noted that the public agencies responsible for protecting the public trust (such as the Department of Fish and Game) had done so.

So, the court would not let the case go forward without the expertise of the government agencies responsible for protecting the trust resources. The proper means to challenge the adequacy of the agencies’ measures was by petition for a writ of mandate after exhaustion of administrative remedies. Center For Biological Diversity, Inc. v. FPL Group, Inc., et al., No. A116362, 2008 Cal. App. LEXIS 1441 (Cal. Ct. App. Sept. 18, 2008).