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Gov't doesn't owe fees In wind farm row, judge says

An Illinois federal judge on Wednesday nixed a bid for attorneys' fees by property owners and renters in a dispute with the federal government over the environmental implications of a proposed tribe-backed wind farm, saying that eligibility issues among the individual plaintiffs had muddied the waters. 

New York -- An Illinois federal judge on Wednesday nixed a bid for attorneys' fees by property owners and renters in a dispute with the federal government over the environmental implications of a proposed tribe-backed wind farm, saying that eligibility issues among the individual plaintiffs had muddied the waters. 

The property owners and renters had persuaded U.S. District Judge Michael H. Mihm earlier this year to order the U.S. General Services Administration to consider the environmental impacts of its power purchase agreement with the proposed 123-turbine Walnut Ridge Wind Farm, and some of the plaintiffs claimed that the government should have to pay their attorneys' fees for the fight, which totaled nearly $100,000.

But the group of plaintiffs seeking the fees, who are eligible for them because their net worths are below the statutory $2 million maximum, hadn't shown that they had been the only ones to pay the fees, Judge Mihm said. In fact, it appeared as though one of the ineligible plaintiffs not involved in the fee bid had been involved in the fee negotiations and payment, according to the order.

"Even if [the eligible plaintiffs] had paid a portion (or even all), further difficulty arises for recovery by the fact that all plaintiffs, eligible or ineligible under the net worth requirement, materially benefit from the outcome in this case," according to the order. "It would be fundamentally unfair to have the eligible plaintiffs simply stand-in place of the non-eligible members."

Moreover, Judge Mihm said, none of the plaintiffs had shown that any fees they incurred as a group would have deterred them from pursuing the litigation, which is also a prerequisite under the relevant statute to make a fee bid.

The GSA announced in October that it inked an agreement to purchase a majority of the power produced by the 210-megawatt wind farm, saying the move put it on track to meet the Obama administration’s goal for federal agencies to obtain 20 percent of their power from renewable sources by 2020. The wind farm is owned by Geronimo Wind Energy LLC, which formed MG2 Tribal Energy LLC with the Mesa Grande Band of Mission Indians to develop the project.

But more than two dozen property owners near the 14,500-acre site sued in January, arguing that the GSA’s central role in the project requires the agency to conduct a review of its environmental impact on the surrounding farmland and ecosystems.

Judge Mihm agreed in May, saying the GSA needed to further consider whether its contract with the wind farm developers qualified as a categorical exclusion to certain environmental regulations, and if not, to determine what additional environmental review is required.

In Wednesday's order, the judge refuted the GSA's claim that the property owners and renters couldn't be considered the prevailing party because they hadn't gotten everything they'd wanted in the litigation. He noted that while the case was a close call, the fact remained that the government had erroneously determined that it didn't need to consider the environmental impact of its actions.

"Its position with respect to that issue was simply not justified," he said. "In that sense, the plaintiffs 'prevailed' at trial. While not achieving their requested relief, all of the requested relief relies on the underlying position that GSA did not comply with [National Environmental Policy Act] in entering into the [power purchasing agreement]."

The government had argued that the plaintiffs hadn't actually gotten what they'd wanted out of the lawsuit because they'd asked the court to forbid the GSA from purchasing electricity from the facility and an order vacating the power purchase agreement, as well as an order for the government to prepare an environmental analysis of the project, among other things.

Representatives for the parties were not immediately available for comment on Thursday. The government does not comment on pending litigation.

The wind farm is proposed for construction in northern Illinois and will include 123 industrial wind turbine generators on approximately 14,500 acres of farm land. The GSA entered into a 10-year power purchase agreement with MG2 Tribal Energy to purchase electricity generation by the facility, according to the opinion.

The plaintiffs are represented by Richard S. Porter and Michael F. Iasparro of Hinshaw & Culbertson LLP.

Geronimo and MG2 are represented by James R. Griffin of Schain Banks.

The GSA is represented by Gerard A. Brost and Peter K. Dykema of the U.S. Department of Justice.

The case is Hamrick, et al., v. U.S. General Services Administration, et al., case number 1:15-cv-01023, in the U.S. District Court for the Central District of Illinois.


Source: http://www.law360.com/artic...

NOV 5 2015
http://www.windaction.org/posts/44387-gov-t-doesn-t-owe-fees-in-wind-farm-row-judge-says
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