Court Sanctions FAA Review as Mitigation for Wind Energy Project


In a partially published decision, the Court of Appeal for California’s Fifth District upheld Kern County’s approval of a major wind energy generation project against a challenge by a local private airport. In the case, Citizens Opposing a Dangerous Environment (CODE) v. County of Kern (June 30, 2014 WL 3696543) ___ Cal.App.4th ____, Kern County approved a 339-megawatt wind farm in the Tehachapi Wind Resource Area. A private airport located approximately one mile from the proposed project objected, arguing that many of the 116 towers (each over 400 feet tall) would create a dangerous obstruction to airspace near the airport, particularly for hang gliders. To address these concerns, the County included a mitigation measuring requiring federal agency review of each wind tower, pursuant to the Federal Aviation Administration (FAA) Part 77 regulations. The petitioner objected to this mitigation, arguing that the County’s reliance on review by the FAA was not appropriate mitigation under CEQA. Petitioner claimed that FAA Regulations presented mothing more than a hollow “fig leaf” of federal preemption, which did not excuse the County from conducting its own, independent review. (CODE v. County of Kern, 2014 WL 3696543 [p. 14].)

The Court disagreed, finding that “federal law occupies the entire field of aviation safety.” (Ibid.) As the County committed its police power to enforce the recommendations of the FAA, the mitigation measure requiring Part 77 review by the FAA constituted legally feasible and appropriate mitigation to address the concerns of the airport related to airspace obstructions. Renewable energy projects often entail potential concerns for aviation safety, in the form of glare from solar panels or possible obstructions created by wind towers. The case illustrates an effective approach to mitigating such concerns under CEQA.

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