Tilting At Windmills
Posted by
Michael EyerlyOctober 20, 2006 7:30 PMJudge throws out environmental group's unfair competition challenge against alternative energy generators based on lack of standing
Who owns California's natural environment: the air and water, the trees and wild animals? Nobody - at least according to a recent Alameda County Superior Court decision. Judge Bonnie Sabraw threw out a suit brought by the environmental group, Center for Biological Diversity. The group challenged the business practices of energy generators who operate windmills in the Altamont Pass area, near San Francisco, claiming these windmills kill significant numbers of eagles, hawks and other birds.
Now, perhaps one environmental group out to save bird life doesn't resonate all that deeply with you. However, the propriety of the particular relief sought by the parties in this specific case is not the point of this article. Indeed, the stakes are much higher.
Grover Cleveland once said: "Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people's masters." He was right. And, on November 2, 2004, passage of Proposition 64 effectively freed Big Business from the restraints of California's Unfair Business Competition Law ("UCL"). Enacted to protect Californians from all varieties of unfair, illegal and fraudulent business practices, the UCL was consumers' biggest tool for corporate restraint. It allowed anyone to bring a civil action to stop corporate wrongdoing, and the UCL was used extensively by environmental and consumer groups. When government agencies either would not or could not prevent injustice, Californians could bring suit to prevent corporations, for example, from dumping toxins into our groundwater, or advertising dangerous products, such as cigarettes, to our children.
As you might expect, for years corporate interests lobbied lawmakers in Sacramento to pass legislation recasting the UCL. However, lobbying efforts and legislative attempts to reform these consumer protection laws failed. But, on November 2, 2004, what they could not do in the Legislature, pro-business interests accomplished by ballot initiative. Proponents of Proposition 64 spent enormous sums of money marketing the ballot initiative, and telling voters how the greedy and evil trial lawyers just love the UCL. Money came from the likes of Bank of America, Blue Cross of California, General Motors, Microsoft and State Farm Insurance Company, to name just a few.
Those opposing Proposition 64 tried to warn voters that it would gut the UCL and lessen corporate accountability. Consumer and environmental groups warned that under Proposition 64, suits brought to protect public health or the environment will cease to exist where the unlawful, unfair or fraudulent business practice threatens societal harm, but no one plaintiff has yet suffered a loss of money or property.
The pro-Proposition 64 groups dramatically outspent the pro-consumer groups, and on November 2, 2004, voters passed Proposition 64, limiting UCL suits to those who have "suffered injury in fact and have lost money or property as a result of such unfair competition."
Now back to the windmill case. Judge Sabraw threw the case out because the environmental group could not point to any single plaintiff who had lost property or money. The group did not own the eagles and hawks being killed by the defendants. The judge held:
"While this requirement of actual loss of money or property may well dramatically restrict the private enforcement of statutes intended to protect the public, that is the effect of Proposition 64, and this court 'must take the statutory language as it finds it,'" Sabraw wrote, quoting the Pfizer decision. "After Proposition 64, enforcement of such statutes in legitimate cases is increasingly the responsibility of vigilant state agencies."
Isn't that reassuring.