Summary of a Recent
Judicial Development in
Renewable Energy

Wind Farm Operators Not Charged with Protecting the Public Trust

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Center for Biological Diversity, Inc. v. FPL Group, Inc., 83 Cal. Rptr. 3d 588 (Cal Ct. App. 2008), the First Appellate District Court of Appeals of California affirmed the trial court's judgment, which had dismissed an environmentalist organization's claims that turbine electric generator owners and operators were violating the public trust doctrine by killing and injuring birds. The court held that the organization had sued the wrong party because private parties are not charged with protecting the public trust.

Background

Responding to federal legislation intended to increase the production of alternative energy, the California Energy Commission created the Altamont Pass Wind Resource Area in Alameda County. Id. at 591-92. From 1981 to 2005, Alameda County issued over 46 permits to private wind energy entrepreneurs. Id. at 592. The plaintiff, the Center for Biological Diversity, originally filed suit against the defendant owners and operators on November 1, 2004, alleging that the defendants were violating the public trust by killing and injuring birds. Id. at 592-93. The California superior court held that the plaintiff lacked standing to bring the suit because the "loss of the power or right to control wildlife" was a "loss of an abstract interest owned commonly by all members of the public, and not a loss of property owned by plaintiff individually." Id. at 592. The court also held that "no statutory or common law authority supports a cause of action by a private party for violation of the public trust doctrine arising from the destruction of wild animals." Id. In the instant action, the plaintiff appealed the superior court's holding regarding the application of the public trust doctrine. Id.

Arguments

The plaintiff argued that the public trust doctrine applied to the destruction of wildlife in addition to tidelands and navigable waters. Id.

The defendants argued that the public trust doctrine applied to tidelands and navigable waters but had no application to wildlife. Id. Additionally, the defendants argued that the plaintiff, as a member of the common public, lacked standing to maintain the cause of action. Id.

Analysis and Holdings

After analyzing the case law presented by both sides on the issue of the applicability of the public trust doctrine to wildlife, the court sided with the plaintiff, stating that "it has long been recognized that wildlife are protected by the public trust doctrine." Id. at 597. The court's rationale was based on both the transient nature of wildlife and the fact that wildlife are not owned individually, but rather belong to everyone in common. Id. In sum, the court stated that the public trust doctrine commands that the state not shirk its duty to preserve and protect the public's interest in common natural resources. Id. at 599.

On the issue of standing, the court held that protecting the public trust is primarily in the hands of public agencies. Id. at 601. The public, however, retains the right to enforce the trust when public agencies fail to discharge their duties. Id. Therefore, the plaintiff had constitutional standing to sue to enforce the public trust. Id.

Although the plaintiff's arguments garnered several victories from the instant court, ultimately the defendants prevailed because the court held that they were not the proper party to be sued. Id. at 602. The court held that Alameda County, which authorized the use of the wind turbine generators, or California's Department of Fish and Game, which was charged with protecting natural resources, were the appropriate parties because they were charged by law to protect the public trust. Id. The defendants, as private parties, were not charged with protecting the public trust. Id.

The case was decided on September 18, 2008.