Fall / Winter 2006 / 2007

We Win our Ninth Circut Court Case ! !

by Michelle Berditschevsky and Peggy Risch

On November 6th, just as we go to press, good medicine prevailed for the Medicine Lake Highland in a major victory for the Mount Shasta Bioregional Ecology Center, the Pit River Tribe and the Native Coalition for Medicine Lake in our decade-long struggle to protect the sacred Medicine Lake Highlands from industrial geothermal development. The U.S. Court of Appeals for the Ninth Circuit issued its decision to reverse the District Court ruling and rejected the renewed energy leases made to Calpine Corporation at Fourmile Hill in the pristine Highlands. Deborah Sivas of the Stanford Legal Clinic at Stanford Law School brilliantly represented our coalition.

Project approval reversed

The Ninth Circuit’s decision determined that BLM and the US Forest Service unlawfully failed to consult with the Pit River Tribe and undertake appropriate environmental review before deciding to grant a 40-year extension on geothermal leases in 1998. The leases had granted Calpine rights to develop geothermal power near Fourmile Hill in the Highlands. This means that the decision to approve the Fourmile Hill project, one of two developments planned in the Highlands, is based on invalid leases and is therefore also reversed.

Judge J. Clifford Wallace, who rendered the decision on behalf of the three circuit-judge panel that also included Judges Kim McLane Wardlaw and Sidney R. Thomas, acknowledged the “great spiritual significance” of the Medicine Lake Highlands to the Pit River Tribe and to the other Native American tribes in the region, who “continue to use numerous important spiritual and cultural sites within the highlands.” The 33-page opinion thoroughly analyzed the complex leasing history and case law that upheld the decision, indicating that laws requiring consideration of cultural and environmental values in the Medicine Lake Highlands were bypassed in renewing the leases.

The 49-megawatt Fourmile Hill geothermal project involves leases covering about eight square miles just over the edge of the Medicine Lake Caldera. But the Ninth Circuit decision has implications for a much greater area. After the leases were renewed, the Medicine Lake Highlands—an area covering about 113 square miles—were designated as eligible for the National Register of Historic Places as a Traditional Cultural Area. Calpine’s total lease holdings cover about half the area, or 66 square miles, and were all approved through a similar process as the Fourmile Hill leases. Calpine has stated plans to develop 500 to 1000 megawatts in the Highlands.

Implication for other projects—it’s not over yet…

A second geothermal project located at Telephone Flat within the pristine Medicine Lake Caldera was at first denied by local decision makers, and then approved in 2002 at the Washington DC level. We have a pending lawsuit challenging the Telephone Flat project on similar grounds as the current Fourmile Hill case. The Telephone Flat lawsuit was automatically stayed when Calpine filed Chapter 11 bankruptcy proceedings in 2005 to reorganize the corporation due to its $22 billion debt, but we have plans to reactivate that claim.
The geothermal projects have been hotly debated ever since they came to public attention in 1997. We see these first two projects as only the first of many that would permanently damage this geologically unique and pristine area. They would transform the Medicine Lake Highlands into an industrial wasteland with multiple power plants, 24-hour drilling and lighting, landscape-fragmenting pipelines, toxic plumes exuding dangerous levels of arsenic, mercury and hydrogen sulfide. These projects clearly would constitute a major threat to the huge pure aquifer that feeds California’s largest spring system.

WATER REMAINS HIGH FOCUS
at October 27th Hearing

After the May 2006 hearing on Calpine’s waste discharge permit, the Central Valley Regional Water Board had many unresolved issues, and decided to continue the hearing in September and then, due to issues we raised, rescheduled to October 27th.
Under the Porter-Cologne Act, the Water Board has the responsibility to protect California’s surface and ground water, and it is our position that Calpine’s geothermal projects pose a grave danger to this major pristine water source.

The process actually began in the spring of 2003, when this permit was pulled from the agenda until completion of environmental review of the acidification of some 20 geothermal wells spanning exploration and development activities on every lease in Calpine’s 66 square-mile holdings in the Medicine Lake Highlands. Only Section 28, which is in the North Coast Regional Water Board’s jurisdiction, is exempted from acidification, because of that Board’s insistence on environmental review of the toxic process before considering their permit. Acidification involves dumping up to 60,000 gallons of highly toxic hydrofluoric acids into as many as 20 wells 9,000 to 11,000 feet deep. The permit would allow Calpine to discharge and pipe acidified geothermal fluids that also contain arsenic and mercury into million-gallon sumps.

High expectations for designated high quality waters of the state

Our goal at the hearing was multifaceted in order to protect the pristine shallow and deep groundwaters of the Medicine Lake Highlands, which are the source of the largest spring system in California and one of the largest in the nation.
We wanted outright denial of the permit, which would have clearly prohibited acidification and Enhanced Geothermal Systems (EGS), a process that dissolves fractures in deep strata in order to pool the geothermal resource.

Our Stanford legal team outlined the regulations and laws requiring the Water Board, as a Responsible Agency, to direct Calpine to complete the environmental review on EGS that had never been covered in any environmental document. The Porter-Cologne Act gives the Water Board a mandate to protect the state’s waters “for use and enjoyment by the people of the state.” As our attorney Deborah Sivas explained, the Water Board “certainly has the authority and legal mandate to regulate the use of acids and their discharge to the environment where such activity could threaten surface or groundwater…. Given the resources at risk here, further environmental review is not only strongly warranted as a factual matter, it is legally required by CEQA and the Porter-Cologne Act before the Board approves a revised WDR Order [the permit] authorizing any acidification activities.”

In addition to completing the necessary environmental review, we asked the Water Board to direct Calpine to collect baseline data on the aquifers, prior to proceeding with any further geothermal activities. The Water Board’s own Senior Geologist acknowledged, “not only is the local direction of the groundwater flow unknown, the actual depth to shallow groundwater is unknown.” The gaps in understanding the hydrogeologic system could have dire consequences because the acids could end up in the drinking water supply of 23 million Californians. This in itself should have been sufficient for the Water Board to recommend denial of the permit.
With this in mind, we also pointed out that the $30,000 in financial assurances is woefully inadequate for a bankrupt corporation to cover potential hazards, such as acid spills and well leakages into the groundwater. According to Dr. Robert Curry, our hydrogeology expert, “the proposed hydrofluoric acid treatment materials are extremely toxic in small quantities…. [A] leaking fuel tank or industrial facility contributing [less than] one percent of the recharge to a groundwater basin can contaminate the entire water supply.”

Outcomes of the hearing

The Water Board approved the permit with an important modification. It’s a mixed bag in that it limited the permit to allow acidification of one well, and yet amends the permit to require additional environmental review for further acidification activities beyond this one well. This one well is the same well that was approved by the Department of the Interior (DOI); at the time DOI also reversed the local decision to deny the Telephone Flat project in 2002 in closed-door meetings with Calpine Corporation. The Assistant Secretary of the Interior’s approval of acidification for this well overrode the usual public process, so that the decision could not be appealed.

In the course of the hearing, the Water Board relied heavily on its staff, which was unfortunately playing the role of advocate for awarding the permit to Calpine, rather than taking a precautionary approach in order to protect groundwater. It was amazing that a corporation in Chapter 11 bankruptcy proceedings could wield such enormous influence, even at the state level, where officials seemed to understand the risks of this project.

At the time this goes to press, we are still sorting through the results of the hearing, and our options for next steps.

In these waning months of 2006, we can gratefully report that the hauntingly beautiful Medicine Lake Highlands adjacent to Mount Shasta will again be in peaceful winter repose, with a notable absence of destructive industrial geothermal activities.
Please renew your membership so that we can say this in perpetuity!