Sunday, February 6, 2011

Center for Biological Diversity Opposes Palen Solar Project

The California Energy Commission (CEC) rejected a petition by the Center for Biological Diversity (CBD) opposing the Palen Solar power project.  The CEC approved the project, proposed by Solar Millennium LLC for nearly 8 square miles of the Chuckwalla Valley, in December.  CBD argues that the CEC violated California law when it approved the Palen Solar project before the Department of Interior gave its final approval to the project, which will have direct and indirect impacts on critical habitat and wildlife management areas.  The Commission is under immense political pressure to favor energy companies in its decisions, and has been heavily criticized for bending and breaking laws to permit fast-track solar power projects.

California State public resources code requires that the State not permit any facility on lands designated for wildlife protection until the land management agency has approved the project.  According to Interior's website for the project, Federal approval has not yet been issued.

The Commission responded to CBD's petition that the State did not violate the law because the public resources code only applies to lands designated as necessary for wildlife preservation as of 1975, which precedes the designation of the wildlife management areas impacted by the Palen Solar project.  The relevant public resources code is copied below, and the Commission's rejection of CBD's petition hinges on one phrase in the law and the last paragraph [emphasis added]:
The following areas of the state shall not be approved as a site for a facility, unless the commission finds that such use is not inconsistent with the primary uses of such lands and that there will be no substantial adverse environmental effects and the approval of any public agency having ownership or control of such lands is obtained:
(a) State, regional, county and city parks; wilderness, scenic or natural reserves; areas for wildlife protection, recreation, historic preservation; or natural preservation areas in existence on the effective date of this division.
(b) Estuaries in an essentially natural and undeveloped state.
In considering applications for certification, the commission shall give the greatest consideration to the need for protecting areas of critical environmental concern, including, but not limited to, unique and irreplaceable scientific, scenic, and educational wildlife habitats; unique historical, archaeological, and cultural sites; lands of hazardous concern; and areas under consideration by the state or the United States for wilderness, or wildlife and game reserves.
The CEC's response relies heavily on interpretations of grammar to make its point, stating that the use of semicolons were not intended to prevent the "effective date" clause from applying to the preceding language.  The CEC also argues that the "State" at the beginning of subsection (a) applies to the rest of the subsection, so none of the wildlife and natural area concerns were intended to apply to Federal lands.

In its rush to approve dozens of square miles of solar power projects on public land, the CEC appears to have forgotten the intent of the law--to protect "areas of critical environmental concern" and "areas under consideration by the state or the United States for wilderness or wildlife conservation".   I highly doubt that the authors of the law wrote it for the sake of displaying intricate understanding of grammar.  To the contrary, they were imploring the Commission to protect our country's natural resources for future generations.  

The Palen Solar power project is assessed to have harmful impacts on desert tortoise habitat, wildlife corridors, and the threatened Mojave fringe-toed lizard.

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