A recent decision by the U.S. Court of Appeals for the D.C. Circuit illustrates the tension that can exist between traditional land development aimed at spurring economic growth and the need to develop renewable energy sources. In this case, the struggle is between Clark County, Nevada, which plans to open by 2017 the new Ivanpah valley airport to accommodate Las Vegas’ booming tourism industry, and the proposed 80+ turbine Table Mountain wind farm some ten miles from the airport. Round 1 to Clark County. But don’t count out the wind farm just yet.
As discussed elsewhere in this blog, the Federal Aviation Administration (FAA) regulates U.S. airspace. In this case, upon notification of the proposed wind farm (part of the process of the permitting of every industrial wind farm), the FAA initiated aeronautical studies to assess whether the turbines would result in an obstruction of navigable airspace. The FAA concluded that no turbine exceeded obstruction standards, would have a substantial adverse effect upon navigable airspace, or would be a hazard to air navigation.
Not satisfied with the FAA’s findings, Clark County filed a petition for review claiming the FAA’s procedural determination was informal and unsupported by the evidence. The court agreed with Clark County that the FAA’s process was faulty. The court concluded that, in violation of the “arbitrary and capricious” standard under the Administrative Procedures Act, the FAA failed to provide evidence in the record to support its determinations, and that in fact evidence in the record supported the opposite conclusion-that the turbines would actually exceed the FAA’s obstruction standards and would interfere with radar systems at the new airport.
The court vacated the FAA’s determinations, remanding the matter to the FAA for further explanation.
The case, Clark County v. FAA (D.C. Cir. No. 06-1377), is available here.
Thanks to attorney Dan Spitzer for bringing this case to our attention, and to Albany Law School student Joe Slater for his write up of the case.