Campo Wind Complaint

This complaint in federal court challenges the United States Bureau of Indian Affairs (“BIA”) notice of record of decision (ROD) authorizing the issuance of a 25-year lease of land (with a possible 13-year extension) between the Campo Band of Diegueño Mission Indians and Terra-Gen Development Company LLC (“Terra-Gen”), allowing Terra-Gen to develop, construct, the Campo Wind Facilities on the Reservation, and the Boulder Brush Facilities on adjacent private lands. The Campo Wind Facilities would consist of sixty 586-foot tall turbines, three 374-foot meteorological towers, 15 miles of new access roads, an electrical connection and communication system, a collector substation, an operation and maintenance facility, a gen-tie line, and other components needed for construction and operation. A portion of the complaint is provided below. The full complaint can be downloaded from the document links on this page. 

52. The FEIS significantly downplays the Project’s biological impacts on numerous species. By understating these impacts, the FEIS fails to accurately inform the public and decisionmakers of the Project’s environmental harm, in violation of NEPA.

1. Golden Eagles and Other Avian Species

53. Wind turbines kill birds.2 The Campo Wind Project’s 60 turbines will be no different. A wealth of bird species has been documented inhabiting or otherwise using the Project area, including sensitive species like golden eagles. FEIS Appendix F. The risk to golden eagles is particularly concerning because they are “currently known to be at risk of population-level effects from [wind turbine] collisions,” and must be afforded every possible protection. Plaintiffs’ July 8, 2019 Comments, Exhibit 2 at 306. Yet the FEIS brushes aside the risk to golden eagles because “[e]agle use on site is infrequent and the chance for collisions is low.” FEIS at 88. It also dismisses collision impacts to other migratory birds (protected under the MBTA) because the Project would implement a hypothetical “Bird and Bat Conservation Strategy (“BBCS”)” to be developed by Terra- Gen to monitor, report and notify a Project biologist about dead or injured birds and bats. FEIS at 88; FEIS Appendix P at 5-6.

54. But not one of the specific suggested components of the BBCS listed in FEIS Appendix P would actually reduce bird collisions or mitigate their impacts on birds. Id. Instead, all of them merely suggest ways to monitor and report bird collisions and deaths after they occur. Id. Yet, despite the absence of any actual proposal to reduce bird collisions and deaths, the FEIS still dismisses the Project’s impact on birds as less than significant with mitigation. FEIS at RTC-21. But if the impact is significant before mitigation, and the mitigation does not lessen the impact–as here–then the impact is still significant after mitigation. FEIS at 88 (admitting that “Absent mitigation, these direct impacts would be adverse” but simultaneously claiming that with mitigation, “the Project would not result in adverse effects to migratory birds”).

55. The FEIS’ vague claims of effective mitigation to reduce bird collisions and deaths are unsupported and insufficient to reasonably inform decisionmakers and the public for at least four reasons. First, the FEIS fails to quantify the number of expected wind turbine collisions with all birds, let alone with any bird species that are particularly at risk. While BIA did complete additional avian surveys to determine the presence of species in the area, it still failed to quantify potential impacts. In the face of the FEIS’ admission that “wind turbines were considered to present a potential risk to avian species for collision” (FEIS at RTC-27), BIA’s failure to quantify this risk by disclosing the foreseeable range of bird deaths leaves the public guessing.

56. Yet despite this profound omission, the FEIS nonetheless claims that “there would be no additional impacts anticipated” to avian species. FEIS at RTC-27. But the FEIS may not, consistent with NEPA, draw this conclusion without facts to support it. State of California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). And, the record shows that this conclusion does not follow from the facts that are available. For example, because the golden eagle population is at risk from wind turbines and other causes, as discussed, the loss of one golden eagle could have population-level consequences. But BIA ignores that potentially devastating impact and flatly declares that “there would be no adverse effects on eagles.” FEIS at 88.

57. Second, after-the-fact monitoring of bird collisions and removal of bird carcasses (as proposed as part of Mitigation Measure (“MM”)-BIO-4) merely documents the harm after it has occurred. It does nothing to mitigate, let alone prevent, the collisions themselves or the resulting bird deaths. FEIS Appendix P at 5-6. Monitoring cannot bring birds back from the dead. BIA’s revision of MM-BIO-4 does nothing to lessen the ineffectiveness of that mitigation measure. Id. Adding more post-mortem monitoring and notification does not stop the impact from happening in the first place. To the contrary, it just habituates the public to the growing death toll, compounding the
unfolding tragedy. 

58. Third, the FEIS fails to analyze the fact that when birds are killed by wind turbines, that mortality impacts both the way birds migrate, and the relative abundance of open-habitat versus forested habitat species. The birds that are genetically best able to lead their flocks on migrations are the ones most likely to be killed, because they are in the lead when they encounter the turbines. With their passing, the flocks as a whole are less likely to migrate well, or at all, leading to population-level declines due to the flocks’ collective inability to timely reach their feeding, breeding and nesting habitats. Relatedly, wind turbines disproportionately impact open-habitat birds, as opposed to birds that avoid open areas. These impacts are among those categorized by scientists as the landscapescale avoidance impacts that the Project’s turbines would likely cause.3 A recent longitudinal study of bird densities at 12 wind farms in Ireland and their paired control sites found that “densities of open-habitat species were lower at wind farms” than at the control sites “independent of distance to turbines.” July 8, 2019 Comments Exhibit 3 at 7. This “suggests that for open-habitat birds, effects were operating at a landscape scale.” July 8, 2019 Comments Exhibit 3 at 8. The Campo Wind Project could well have similar effects. While some of the bird species inhabiting the Campo Wind Project site may be different than those at the study sites in Ireland, because the terrain is more “openhabitat” than “forested,” the birds that occupy this habitat are more likely to be  vulnerable to landscape-scale lethal effects.

Campo Wind Complaint 7 8 20

Download file (281 KB) pdf

JUL 8 2020
back to top