The unions are taking on solar power once again, with CEQA as their weapon of choice. What their motive is may be a different issue.
As we have mentioned before in this space, it is a good idea to keep track of CEQA petitions being filed, not just those that have resulted in reported Court of Appeal decisions. Opinions states what the law is - but the petitions often foreshadow what the laws are likely to be in the future.
With that goal in mind, we note Coalition for Responsible Solar; California Unions for Reliable Energy; and Artie Mann v. City of Adelanto, County of San Bernardino, case number CIV DS1409364, a verified petition for writ of mandate filed under CEQA. Petitioners are described primarily as associations of labor unions concerned with public health and safety, with members who construct, operate and maintain power plants throughout California. It is not clear in the petition why unions whose members are employed in power plants would seek to block construction and operation of such plants.
Without commenting on this specific case, we do note that there is a long-standing practice of labor unions filing lawsuits under CEQA to challenge various developments. The stated purpose is to protect public health and that of its members and to ensure enforcement of CEQA for the public good. A more cynical view is that the labor unions challenge any project which does not have an agreement to provide union labor and services. In effect, a project developer is presented with a stark choice: it can agree to use union labor under specified conditions, or it can suffer the delays and possible risks associated with a CEQA lawsuit that may tie the project up for as much as three years. The Supreme Court has made it clear that the motives of CEQA petitioners are rarely, if ever, a basis to dismiss such lawsuits; if petitioners say they have good motives, the court will take them at their word. The obvious potential of misuse of CEQA for manifestly non- environmental purposes is just a part of the game.
Motives aside, the union's target in this case is a Mitigated Negative Declaration (MND) prepared for the Aries Solar Project 827 MW PV, a solar energy generation facility (photovoltaic panels) on approximately 206 acres in the city of Adelanto. Petitioners allege that the area is "endemic to Valley Fever," a lung disease spread by dust particles, which can be fatal and has been linked to large-scale solar projects in the desert areas in California.
Petitioners produced an expert to attest to such dangers, and to recommend appropriate mitigations. The City, however, moved forward with the negative declaration with only a fleeting reference to Valley Fever, asserting (at least according to the petition) that since everybody in Adelanto lives in an area endemic to Valley Fever, they are basically immune to the disease and therefore there would be no impact. Petitioner's expert, probably apoplectic at this assertion, lodged a strong objection to no avail.
The petition also alleged that since the project had a twenty-year life span, after which it would be decommissioned, the negative declaration should have discussed the decommissioning process and its potential impacts; in fact it said nothing about this phase. It was not clear what removing the project structures in restoring the 206-acre site might do in terms of biological and soil impacts, but petitioners say they will occur.
Time will tell whether this complaint has legs - after all, if everything in Adelanto creates dust and that causes Valley Fever, the problem hardly seems unique. But a MND has to be elevated to an EIR whenever there is a "fair argument" that there could be a significant impact. This is the reverse of the standards for judging an EIR, which require only that there be substantial evidence to support the conclusions in the document. It has been said that defeating an EIR is like hitting the bull's eye on a target, whereas the fair argument standard requires only that you hit the target somewhere to win. Lead agencies should consider carefully the standards of review when setting out an MND as a target.