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Two environmental nonprofits used the state’s environmental law to extract settlements from solar developers whose projects still went forward.
About three years ago, two environmental nonprofits say they went to war on behalf of Imperial Valley farmers and the environment as developers pushed a crush of massive solar projects.
San Diego County-based Backcountry Against Dumps and the Protect Our Communities Foundation filed a half-dozen lawsuits alleging the approval of a slew of solar projects violated Imperial County’s general plan and CEQA, the state’s primary environmental law.
But the most apparent outcome of the lawsuits had nothing to do with the environment. Instead, the nonprofits took in millions of dollars in cash settlements.
CEQA is meant to allow opponents to push for project changes that lessen its impact on the environment. But no public announcements were made about environmental wins, compromises with developers or killed projects within the settlements.
Indeed, several of the solar projects the group opposed now cover thousands of acres of agricultural land in Imperial County and there haven’t been obvious changes that appear to be the sole result of the lawsuits.
The legal efforts, however, have resulted in major payouts.
The nonprofits won $17.2 million in settlements from the suits, a number revealed in separate lawsuits filed as part of a dispute between the two groups. Most of the proceeds – roughly $9 million – was to go to the nonprofits and the attorney representing them, according to the lawsuits.
Another $2.24 million in settlement money helped Backcountry Against Dumps founder Donna Tisdale’s family purchase a plot of land once eyed for a solar development.
The remaining $5.9 million was set to go to farmers who opposed or were affected by the solar projects. In some cases, property owners booted farmers to make way for solar panels and farmers who worked near the proposed solar farms feared those projects would disrupt their farming operations over the long haul.Tisdale and Bill Powers, who serves on the Protect Our Communities Foundation board, say their work aided Imperial County farmers and protected crucial farmland, the loss of which was downplayed along with the state’s renewable energy ramp-up.
They said their environmental lawsuits were part of a fight that began years earlier. The two groups banded together in 2009 to fight the Sunrise Powerlink, a transmission line that now carries renewable power from Imperial County to San Diego Gas & Electric customers. Their barrage of administrative challenges, criticism and lawsuits didn’t halt that project.
So the two San Diego County groups attacked the Imperial County renewable projects that tied into the Sunrise Powerlink. Together, they’ve sued the county and developers over about half of the two-dozen solar project permits approved by Imperial County since 2010. In each of the lawsuits filed in 2011 and 2012, they alleged violations of the county’s general plan and CEQA.
No matter their merit, these lawsuits can be perilous for solar projects. Many solar efforts have short windows to consummate power agreements with utilities like SDG&E.
Powers said the nonprofits’ lawsuits were meant to send a message.
“It made clear that it’s not a complete open season on Imperial Valley farmland, that some effort would have to be expended to justify those projects,” he said. “It allowed us to continue on our mission of challenging all aspects of the Sunrise Powerlink project.”
The groups’ legal opposition to renewable projects has thus far been their most substantive effort to support Imperial County farmers and environmental concerns.
About two months ago, the Protect Our Communities Foundation – whose bank account took in most of the settlement proceeds – announced it’d offer nearly $350,000 in grant money for Imperial Valley land conservation programs or funding to help farmers displaced by renewable projects.
Powers said the cash came from a recently paid Imperial County settlement. He said his group has used other proceeds from the settlements to support its mission to promote renewable power sources – namely, rooftop solar – that are closer to San Diego energy customers and have a lesser environmental impact.
Despite the settlements, Tisdale recently said her group hasn’t had the resources to sink into Imperial County programs. But her nonprofit and its attorney have continued to weigh in on Imperial County renewable energy developments at public hearings and in letters submitted to the county. They’ve also fought solar and wind projects in San Diego County and even across the border.
But beyond these efforts, it’s not clear exactly what the legal challenges did to help the environment.
Powers and Tisdale won’t talk publicly about specific settlements, citing confidentiality agreements.
After repeated requests, Tisdale said she might be able to provide details on project changes that resulted from the nonprofits’ efforts if she did more research but couldn’t say how long that would take.
The dynamics of the renewable power industry also add to the challenge of determining whether the lawsuits inspired changes. Projects can be reduced or built in phases based on agreements with utilities who sign deals to purchase power. Projects that don’t receive such agreements often get postponed or canceled.
One solar project did die after settlement talks with the nonprofits.
In a February 2012 letter, 8minutenergy Renewables President Tom Buttgenbach – whose company has proposed more than a dozen solar projects in Imperial County – told county officials his company was engaged in settlement talks with the Protect Our Communities Foundation. He said he expected the cancelation of its approvals of a project known as Calipatria Solar Farm II to be a condition of the settlement and asked the county to cancel the permits it received three months earlier. Buttenbach said at the time he expected to reapply for permits after conducting a more elaborate environmental review.
The project never re-emerged.
The company’s legal counsel, nor Tisdale and Powers, would comment on the reasons for the project’s plight. Powers would only say the nonprofits didn’t receive a cash settlement from the developer.
But it’s uncertain that the nonprofits’ lawsuit was a fatal blow.
Jim Minnick, the county’s director of planning and development services, said there may have been more to the story.
The Calipatria Solar Farm II project never received a power agreement with a utility, meaning it was less valuable than other 8minutenergy projects that already had one, Minnick said.
Indeed, the company has since covered more than 2,000 acres of land with solar panels following deals with SDG&E and has announced it’ll develop additional acreage to fulfill an agreement with Southern California Edison.
Powers and Tisdale also take credit for their lawsuits reducing an untold number of Imperial County solar projects. But developers who significantly scaled back two projects did so before the nonprofits’ lawsuits were filed. Tisdale wouldn’t speak about the two projects but said developers can’t be trusted to stick to their word.
“Promises made are not always promises kept unless there is some kind of contractual agreement in general,” she said.
In another case, developers appeared to reduce their project by more than 20 percent after a lawsuit.
That wasn’t so simple, either.
The company could cover their entire 2,000-plus-acre site with solar panels if they get a second power agreement.
Tisdale and Powers are adamant their lawsuits did create change and protect a rural community that’s watched thousands of acres be covered with solar projects.
“Urban areas have more funding, more political influence, more people and the rural communities generally have less of that to defend themselves,” Tisdale said. “We’re always targeted for all the industrial-scale projects because we’ve got the land and not enough people to defend it.”