9th Circuit vacates FAA ruling on Campo Wind proposal

SUMMARY

On Tuesday, August 15, 2023 the Ninth Circuit Court of Appeals issued a published Opinion vacating as “arbitrary and capricious” the Federal Aviation Administration’s (“FAA’s”) denial of a petition by an environmental organization, Backcountry Against Dumps (“Backcountry”), seeking discretionary review of a plan by Terra-Gen Development Company (“Terra-Gen”) to construct 72 wind turbines including 60 that would be 586 feet tall on the crest of the Coast Range in San Diego County. The turbines would be roughly twice the height of the Statue of Liberty and located within the principal aviation corridor between San Diego, California and Yuma, Arizona.  Backcountry’s petition recognized the vital need for renewable energy to counter climate change, but pointed out that public and environmental safety must also be factored into project reviews. It cited documentation showing the turbines would pose collision hazards to fixed wing and rotary aircraft, impair radar function, potentially trigger greenhouse gas-emitting wildfires due to wind-induced sparking of power lines, lightning strikes and overheating of rotors, impede aerial firefighting and other emergency response, and force air traffic to fly at higher altitudes more prone to icing hazards to clear these enormous obstructions.

THE RULING

Stating that “[t]he case has exceptionally high public importance,” the Court’s attached 29-page ruling holds that the FAA had a duty to provide notice of its aeronautical study of Terra-Gen’s proposed turbines to interested organizations including Backcountry so that they might comment on the project’s impacts on air navigation, and potentially petition for discretionary review of the FAA’s determination that it posed no hazards to air navigation. The Court noted Backcountry’s petition to the FAA alleged that the project “would have a significant adverse effect on aircraft safety and operation, by forcing aircraft to higher elevations where they will suffer greater risks of wing- and rotor-blade icing, by producing turbulence, by degrading radar function, and by impeding low flying aircraft,” and that the project poses a risk of “fatal aircraft collisions” with wind turbines “that cannot be eliminated by FAA-required lighting.” The Court agreed with Backcountry that, although it was imperative “to transition away from fossil fuels as an energy source . . . to avoid the worst impacts of climate change, . . . . there can be no doubt that the development [of clean energy] must proceed in a manner that accounts for the safety of aircrafts flying near the turbines.”

The Court rejected each of the FAA’s justifications for not providing notice to Backcountry and refusing to accept its petition for review -- despite Backcountry’s obvious direct interest in the safety of this project and its submission of a previous petition that led to vacation of the project’s original aeronautical study on multiple grounds. Reasoning that “Backcountry is clearly an interested party” entitled to individualized notice under the FAA’s governing Order, and holding that the FAA is “obliged to abide by the regulations it promulgates,’ including its own internal operating procedures,” the Court ruled that mere “[c]irculation of the [aeronautical] study via public notice on the FAA’s website, without any individualized communication with Backcountry, was not sufficient to satisfy the FAA’s regulatory obligation.” Finally, the Court rejected the FAA’s argument that even if it erred by not giving Backcountry notice, Backcountry did not show that it was prejudiced by the procedural deficiencies, stating: “the FAA’s procedural error substantially prejudiced Backcountry by depriving it of the opportunity to engage in this interactive administrative process.”

EFFECT OF THE RULING

The effect of the Court’s ruling is significant. Had the Court upheld the FAA’s refusal to consider Backcountry’s petition, the project would have received a final “No Hazard Determination” from the FAA, precluding the public from questioning this finding due to the project’s many hazards to air navigation as documented by Backcountry. These hazards include impairment of radar used by San Diego airports, collisions with low-flying aircraft used for farming, military and other purposes such as aerial fire-fighting, and the potential to cause massive greenhouse gas emissions due to wildfires caused by rotor burnout, lightning strikes and wind-induced sparking of power lines. A study led by researchers at UCLA and published in the October 2022 edition of the journal Environmental Pollution confirmed that California’s 2020 wildfires emitted 127 million metric tons of C02, roughly double the 65 million metric ton reduction in greenhouse gas emissions from renewable energy programs in California for the 17 years between 2003 through 2019. Many of those fires were caused by power lines. Ironically, a project intended to reduce greenhouse gas emissions might instead increase them.