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Legal challenges mount to new round of Navy training permits

Effects of Noise on Wildlife, Ocean, Sonar No Comments »

In December, the Navy’s current five-year plan for training and testing activities around Hawaii and off the southern California coast were approved by NOAA regulators, covering the years 2014-2018.  The approval authorized incidental takes of marine mammals, including both widespread behavioral changes and close-range injuries and some deaths, as a result of sound exposure from sonar and explosives, as well as ship strikes.

ShoupImmediately after NOAA’s approval, environmental organizations filed suit in federal court in Hawaii, and this week, other organizations filed suit in a San Francisco federal court (the Navy pushed back in a brief statement).  It’s unclear from early press coverage how much overlap there is between the two; the Hawaii suit, led by Earthjustice, initially named just NOAA, but has been amended to also name the Navy as a defendant.  The San Francisco suit, led by the NRDC, targets NOAA, charging that federal regulators did not use “best available science” and that their finding of “negligible impact” violates the Marine Mammal Protection Act.

At issue in both suits is the shockingly large numbers of animals that are permitted to be affected, amounting to nearly 10 million behavioral responses, the potential for 2000 permanent injuries (including hearing impairment), and 155 deaths over the course of five years.  “This is an unprecedented level of harm,” Zak Smith, an attorney with the Natural Resources Defense Council, said. “In order to authorize these impacts on marine mammals, the service had to turn its back on the best available science.”

It’s important to note that while sonar has been the focus of most public concern, explosions during testing and training are predicted to cause most of the injuries and deaths.  The Navy and NMFS consider the estimates to be extremely cautious (ie far higher than actual likely impacts) for a number of reasons; see the bullet list in this earlier AEI post for more on why.

NRDC, Earthjustice, and the other plaintiffs continue to stress that the Navy can and should limit its activities in areas and times of particular biological importance to marine species; the lack of such “spatio-temporal restrictions” has been a bone of contention for many years, and this time, as in past rounds of permitting, the Navy and NMFS determined that such restrictions would yield little biological benefit.  A largely similar lawsuit filed in 2012, challenging NOAA permits for Navy training in the Pacific Northwest, ended up in a split decision, with the “best available science” ruling going against NOAA, but the large takes challenge (including the lack of exclusion zones, as well as faulty negligible impact ruling) falling short, with the court approving of NOAA’s analysis and actions.

UPDATE, 2/10/14: See this article from NRDC, outlining their reasons for this lawsuit and how it fits in with their 20-year history of focusing on ocean noise issues.

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23 Texas wind farm hosts sue over noise, nuisance

Human impacts, Wind turbines 14 Comments »

In what may be an unprecedented move, 23 Texans who host wind turbines on their property have filed suit against two different wind farm developers, claiming that companies “carelessly and negligently failed to adequately disclose the true nature and effects that the wind turbines would have on the community, including the plaintiffs’ homes.”

The plaintiffs host hundreds of turbines on projects developed by Duke Energy and E.ON, and as a Duke spokesman noted, they did consent to the placement of the turbines.  However, the lawsuit stresses that the companies told residents the turbines “would not be noisy, would not adversely impact neighboring houses and there would not be any potential health risk.”  

This court challenge stands apart from most previous nuisance suits, nearly all of which been filed by non-participating neighbors of wind farms (ie, local residents who are not hosting turbines themselves).  Most annoyance surveys suggest that wind farm hosts are less likely to be bothered by turbine noise than non-participating neighbors, and many wind projects make an effort to spread the financial benefits to include some non-host neighbors, because of suggestions that broader project participation will increase community acceptance.  In this case, however, the plaintiffs are receiving lease payments and tax benefits that will exceed $50 million over the life of the projects.

Among the plaintiffs are Willacy County Commissioner Noe Loya, who is said to “no longer enjoy sitting outside because of the loud noise,” with turbine noise inside and outside his home “disturbing the peace and making it difficult to enjoy living there.”  Another plaintiff, a local Justice of the Peace, “has difficulty sleeping, cannot have his windows open (and) cannot enjoy the sound of nature, due to loud noise from wind turbines.”  The lawsuit also claims that some residents have abandoned their homes. In addition to noise issues, the suit includes visual impact, property value, and health effects claims.

E.ON spokesman Elon Hasson, says the company is reviewing the suit. “We develop all of our wind farms in a safe, state-of-the-art and responsible manner. . . We believe these claims will be shown to have no validity.” 
UPDATE, 1/31/14: Spokesmen from both companies issued statements noting that one claim of the suit—that the companies had no plans to remove the turbines at the end of their useful life—is false, and stressed their ongoing monitoring and maintenance of the machines.  They more generally dismissed the other accusations, as well. 

The suit was filed in State District Court in November.  In December, the companies requested that it be moved to federal court, where U.S. District Judge Hilda Tagle has called for a response from the companies by February 6.  

Ed. note: Some wind development leases I’ve seen explicitly preclude hosts from filing nuisance suits. There is limited information online about this case, and it’s unclear whether the plaintiffs’ contracts include such restrictions; if they do, then the legal case may be open-and-shut, or it may be that the crux of the legal challenge is the veracity and completeness of information provided to hosts prior to signing contracts. (It may be worth noting that lease agreements don’t usually include “gag clauses” against speaking publicly about noise or other post-construction experiences; confidentiality clauses usually cover only financial terms and development plans.)