Back in the Saddle Again

Prop. 64 robbed enviros of a key weapon against corporate wrongdoing, but a local judge's ruling could rearm them.

Environmentalists know that the best place to fight corporate greed isn’t always city hall, Sacramento, or Washington. Sometimes it’s the courtroom. So when California voters stripped them of one of their best legal weapons, the enviros and their attorneys were understandably concerned.

For years, eco-friendly lawyers have battled corporations under a landmark state law typically employed by consumers’-rights attorneys. This so-called unfair-competition law gave consumer advocates and environmental groups recourse against companies that gained a competitive edge as a result of illegal activities — skirting product-safety requirements, for example, or killing endangered species.

Over the past several years, a few unscrupulous attorneys have misused the law to file frivolous suits against small businesses, and although these shakedown lawyers were later disbarred, their actions reignited calls to gut the unfair-competition law. The result was Proposition 64, marketed to voters last fall as a savior for small-business owners, but bankrolled by large corporations bent on stifling legit litigation by consumer and environmental groups.

Californians may view themselves as enviro-friendly, but they voted otherwise in November. Prop. 64 sounded reasonable enough, after all. It disallowed suits unless individuals could prove they had been personally harmed. But since it’s often difficult to demonstrate personal harm from a corporation’s lawbreaking, the successful proposition’s effect was to bar most unfair-competition suits.

It was clear that no such lawsuits could be filed after the election unless they met the new tough standard. But corporate defense attorneys have taken things a step further by arguing that the suits pending on election day should be tossed. The environmentalists, it seemed, were up a polluted creek.

A few weeks ago, however, an Alameda County Superior Court judge issued a little-noticed decision that some enviros cautiously hope will undo at least part of the damage done by voters at the ballot box. The case in question pits wind-energy producers trying to save a buck against wildlife lovers trying to save golden eagles from being ripped apart.

There’s a dirty little secret about wind turbines: They can be fatal to anything with wings. Altamont Pass — a massive wind farm on the barren hills flanking Interstate 580 near Livermore — happens to be a favorite haunt of federally protected golden eagles, as well as red-tailed hawks, great horned owls, and ten or so other majestic raptors. Every year, thousands of these unsuspecting big birds are shredded by turbine blades or electrocuted on transmission lines. In a study published last year by the California Energy Commission, researchers put the annual avian toll at between 1,700 and 4,700.

The Center for Biological Diversity, an Arizona-based conservation group, had long been trying — unsuccessfully — to convince the wind-power companies, Alameda County (which issues their permits), the state Department of Fish and Game, and the US Fish and Wildlife Service to do something about the slaughter. The center also hoped wind-power companies would heed the energy commission’s recommendation that Altamont’s smaller 1980s-era windmills be replaced with taller, modern ones, which are more efficient and kill far fewer birds.

But the new turbines are pricey, and by last fall, it seemed clear the wind-power companies weren’t planning to act anytime soon. Mindful of Prop. 64, the center filed its suit one day before the election. Ever since, jubilant corporate lawyers have been papering California courts with hundreds of dismissal briefs. Among them was a motion by the wind-energy companies to throw out the wind-farm suit.

A split has developed in the courts on whether Prop. 64 should indeed be retroactive. On February 10, Alameda County Superior Court Judge Ronald Sabraw ruled that it should — and that most of the cases should be dismissed.

But then the judge made a surprise move. He refused to dismiss the wind-farm suit, noting in effect that every individual in California is personally harmed when a bird is killed illegally. Sabraw cited the “public trust doctrine,” a well-established section of California law that basically says much of our environment is held in trust by the government on behalf of its citizens. At the urging of attorney Richard Wiebe, who represented the Center for Biological Diversity, Sabraw based his decision on the state Supreme Court ruling in 1983 that led to the protection of Mono Lake.

Lawyers for environmental groups throughout the state are crossing their fingers that Sabraw’s ruling will survive on appeal. If so, his decision could rearm the embattled nonprofits in their long-running war against corporate ne’er-do-wells. “I would definitely expect environmental groups to be looking at the public trust doctrine as a way to keep citizen lawsuits alive,” noted Michael Schmitz, an Alameda attorney and leading Prop. 64 foe.


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