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Not Just Twirling in the Wind: Turbine Decision is a Useful Tale for Litigators

By Eric L. Lipman

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeal for the District of Columbia Circuit sustained the challenge of Clark County, Nevada to a series of Federal Aviation Administration orders.

County officials challenged the agency?s determinations that a plan to place 83 wind turbines atop Table Mountain would not interfere with the county?s parallel development of an airport, in the valley below, some ten miles away. The County argued that the proposed wind turbines would be placed within a federally-established development-free slope that extended from the end of its runway, and that to the extent that operating wind turbines mimicked the appearance of ?a fleet of jumbo jets? to airport radar, placement of the turbines presented a genuine hazard.

The appellate panel agreed on both scores, concluding that the FAA?s contrary determinations were not sufficiently grounded in the underlying record.

To my mind, the panel?s decision is worth a review by practitioners of all stripes for it what it instructs about sharp (or thin) litigation positions. For example, regarding the ripeness of the County?s challenge, the panel ribbed agency counsel for it termed a ?now-is-too-early, later-is-too-late argument? as to when a challenge of the agency?s decisions would be timely. Similarly, the panel gave a chilly reception to arguments supporting the FAA?s decision that were first advanced after the County filed suit.

These cautionary tales, and the panel?s complete analysis, is accessible here.

Full post as published by Within the Scope on April 19, 2008 (boomark / email).