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A closely watched and controversial lawsuit involving several wind operators in California’s Altamont Pass ended with dismissal of the case last month.

The plaintiffs in Center for Biological Diversity v. FPL Group, Inc. sued a group of wind operators in 2004 under two novel theories – that the wind companies are illegally profiting from killing birds in violation of California’s Unfair Competition Law (“UCL”), and that, in killing them, the companies are also violating an alleged “public trust interest” in birds. These legal claims were troubling for the wind industry. To date, wind companies have had only limited legal exposure under wildlife protection laws such as the Migratory Bird Treaty Act (“MBTA”) and the Bald and Golden Eagle Protection Act (“BGEPA”) because they do not authorize citizen suits—meaning they can only be enforced by the federal government. For the most part, the Justice Department has declined to prosecute wind companies under the Acts.

The plaintiffs in Center for Biological Diversity tried going around this obstacle by using the UCL, which until recently had provided private citizens a right to enforce violations of the MBTA and BGEPA by calling such violations “unfair business practices” under California law. However, shortly after the suit was filed in November 2004, California voters enacted Proposition (“Prop”) 64, which amended the UCL to prohibit private suits brought on behalf of the public and not based on loss of money or property suffered by the plaintiff. The wind company defendants quickly brought a motion to dismiss the suit based on the new law, but it was rejected by the court last year, which concluded, among other things, that the plaintiffs sufficiently alleged an injury to property – i.e., birds held in trust by the public.

In the meantime, California courts issued new decisions in 2006 interpreting Prop 64. Armed with this new case law, the defendants moved to dismiss the suit, again based on two arguments—that the plaintiffs lacked standing to sue under the UCL, as amended, and that there is no private right of action for destruction of public trust resources. This time, the court agreed on both counts and dismissed the suit.

First, the court concluded that the loss of “money or property” required for standing under Prop 64 did not include injury to birds. The court looked at the text of the new law, which referred to a loss of money or property in two places. The law limited the standing, or the right to sue, under the UCL to those who “lost money or property as a result of such unfair competition.” The law also limited monetary recovery to restitution “necessary to restore any person in interest any money or property” taken as a result of unfair or unlawful business practices. The 2005 decision had concluded that the “money or property” required for standing was broader than that for monetary relief, so that the plaintiffs could maintain their suit based on the alleged injury to birds even if they could not receive monetary relief. In its new decision, the court rejected this argument based on the California Supreme Court’s decision in California for Disability Rights v. Mervyn’s, which held Prop 64 prohibited lawsuits based on “abstract interests.” The trial court concluded that because the plaintiffs’ interest in birds was, at most, an abstract interest held in common by the public, the plaintiffs could not show standing or a right to restitution. In other words, if the plaintiffs could not get money for the loss of birds, they could not sue based on harm to the birds either.

Second, the court rejected a cause of action based on the alleged destruction of wild animals held in the public trust. The court found no statutory or common law basis for such a private cause of action, holding that cases have limited such suits to those involving navigable and tidal waters. The court rejected the argument that provisions of the California Fish and Game Code describing wildlife as the “property of the People” create a private right to sue, as the Code also states that any claims for the destruction of such wildlife must be brought by the State, not private individuals.

It is unclear at press time whether the plaintiffs will appeal the court’s ruling, although it is likely because the door has been slammed on private environmental suits based on state law. Even if the defendants are ultimately successful in defeating the suit, the high-profile litigation has propelled bird mortality into the spotlight and has made permitting of new wind projects more difficult and more costly. This may continue to be the case regardless of the ultimate outcome of this particular suit.

Citations:

Ctr. for Biological Diversity v. FPL Group, Inc. (Alameda Superior Court No. RG04-183113)

Cal. for Disability Rights v. Mervyn’s,
39 Cal. 4th 223 (2006)

Pfizer v. Superior Court, 141 Cal. App. 4th 290 (2006)

Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210

Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712

Bald & Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d

Cal. Fish & Game Code § 1600