NEPA Nightmares IV: Tule Wind

The National Environmental Protection Act (NEPA) is a major source of permitting delay for important clean energy infrastructure. NEPA lawsuits, filed disproportionately by large environmental NGOs, pose a real, sizable, and concerning risk to clean energy development and the future of American decarbonization. The most contentious NEPA challenges filed between 2013 and 2022, on average, delayed clean energy projects by just under 4 years. The majority of those lawsuits were filed by a small set of national NGOs who lost upwards of 70% of their cases.

In most cases, NEPA litigation functions to delay and add cost to infrastructure development, not to improve environmental outcomes. The fight against the Tule Wind project shows how easily NEPA lends legitimacy to conspiracy theorists working to quash clean energy projects with misinformation.

This is the fourth installment of our ongoing series exposing the toll that the NEPA litigation doom loop takes on development of clean energy infrastructure in the United States. Stay tuned for future installments.

Fringe conspiracy theorists love to hate electromagnetic frequency, or “EMF” for short. Despite an overwhelming body of scientific evidence refuting the claim, those donning tinfoil hats often blame EMF for everything from cancer to COVID-19. In the Imperial Valley, activists have put their own spin on “EMF poisoning”, claiming wind turbines emit “dirty electricity” that causes ailments like cancer, diabetes, and ADHD. At least that's the narrative pushed by Backcountry Against Dumps (BAD), a group that has weaponized environmental laws like NEPA to force federal agencies and judges to repeatedly debunk these unfounded theories.

The story of Tule Wind begins in 2004, when the Bureau of Land Management (BLM) authorized Iberdrola to conduct environmental testing on land designated for a wind energy project. Designed to generate enough clean electricity to power 40,000 homes, Tule Wind was divided into two phases: Phase I, featuring 62 turbines on BLM-managed land, and Phase II, which would erect 24 turbines on land belonging to the Ewiiaapaayp Band of Kumeyaay Indians. BLM spent eight years conducting an exhaustive review of the project's environmental impacts, culminating in a 6,000-page NEPA analysis. Simultaneously, the Bureau of Indian Affairs (BIA) approved the lease between the developer and the Ewiiaapaayp Band of Kumeyaay Indians for Phase II, issuing its final decision in late 2013. Initially, construction was estimated to last about 2 years. But thanks to BAD’s slew of NEPA challenges, the project wasn’t energized until 2018.

BAD’s founder, Donna Tisdale, first took legal action against Phase I in 2014, claiming in part that BLM had failed to adequately assess the health impacts of Inaudible Infrasound and Low Frequency Noise (ILFN) as well as Electric and Magnetic Field (EMF) radiation. Her allegations linked wind turbines to everything from cancer to chronic fatigue syndrome, claiming they generated "dirty electricity." Unsurprisingly, Tisdale lost the case and the subsequent appeal, with the courts affirming that the agency adequately assessed her claims about EMF exposure and found them to be inconsistent with real, published science.

Undeterred by her defeat, Tisdale pivoted to Phase II of the Tule Wind project, which was located on the Ewiiaapaayp Band's tribal land. She abandoned her concern for EMF radiation, alleging instead that by approving the project, BIA granted the tribe permission to slaughter golden eagles—an accusation that, if true, would constitute a federal crime. Her legal team attempted to draw parallels with Anderson v. Evans, a case involving the government's authorization of whale hunting by a tribe. However, the judge dismissed the argument as absurd, stating that it “...ignores how our bureaucratic government works.” Predictably, Tisdale lost both the case and the subsequent appeal.

Comically, Tisdale’s anti-wind crusade is riddled with contradictions and tainted by self-interest.

Despite her vocal opposition to wind turbines and their supposed health risks, she operates a private windmill on her own ranch—seemingly unbothered by the “dirty electricity” she claims to fear.

Furthermore, BAD’s track record suggests a pattern of opportunistic legal maneuvers aimed at extracting settlement fees rather than advancing legitimate environmental protections. In 2012, her organization secured $17.2 million from a settlement related to the Sunrise Powerlink project. Those funds were later used by her family to acquire farmland previously slated for a solar development—which were purchased at a bargain rate in exchange for dropping their opposition to another solar farm.

In reality, Tisdale’s legal onslaughts have less to do with protecting public health or the environment and more to do with obstruction. At best, these lawsuits are a distraction from real environmental issues; at worst, they’re an opportunistic exploitation of the legal system that hinders clean energy development. That NEPA, and other permitting bureaucracies, can be so easily scammed, manipulated, and weaponized, by conspiratorial and pseudoscientific litigation, like those from BAD, underlines how badly we need permitting reform. Tisdale’s motivations for taking Tule Wind hostage are dramatically different from the National Parks Conservation Association’s delaying the Skurry-Skifes Creek-Whealton transmission line, or the Sierra Club’s hamstringing the North Sky River Wind project, but all three demonstrate the ease by which motivated parties can hijack clean energy projects for spurious causes.

South Fork/Revolution Wind

BOEM approved this 704 MW offshore wind project in 202 Activists filed multiple lawsuits, claiming it would diminish the value of beach-front homes owned by their members. They lost because they couldn’t prove actual harm.

• 9/12/2013 - BOEM executed commercial wind energy leases OCS-A 0486 and OCS-A 0487 with the winner of lease sale ATLW-2, Deepwater Wind New England, LLC
• 8/30/2018- South Fork Wind Farm and South Fork Export Cable gain coverage under the FAST-41 program, which aimed to streamline the federal environmental review process​
• 11/24/2021- Department of the Interior today announced it has approved the construction and operations of the South Fork Wind project offshore Rhode Island
• 1/25/2017- Power Purchase Agreement ("PPA") between Long Island Power Authority and Deepwater Wind South Fork, LLC
• 08/10/2018 - Ørsted acquires Deepwater Wind
• October 19, 2018 - Notice of Intent To Prepare an Environmental Impact Statement for Deepwater Wind South Fork, LLC's Proposed Wind Energy Facility Offshore Rhode Island and Massachusetts
• 3/18/2020- New York State Public Service Commission issued a Certificate of Environmental Compatibility and Public Need to South Fork Wind, LLC to construct and operate the South Fork Export Cable Project
• 1/4/2021- BOEM released a Draft Environmental Impact Statement for the South Fork Wind Farm and South Fork Export Cable Project
  • Biological Assessment to the National Marine Fisheries Service and USFWS
• 5/7/2021 - BOEM published Construction & Operations Plan
• 8/16/2021 -BOEM published Final Environmental Impact Statement
• 11/22/2021- The New York State Public Service Commission approved the project’s Environmental Management and Construction Plan (EM&CP), allowing onshore construction to proceed.
• 11/24/2021- BOEM issues a Record of Decision (ROD), approving the Construction & Operations Plan and Final Environmental Impact Statement
• 2/3/2022 - Governor Hochul Announces Start of Construction
• 01/16/24 - Environmental Plaintiffs File complaint against BOEM’s approval of the project
• 3/15/2024- Construction Complete and all 12 Turbines Powered Up
• 4/30/2024 - D.C. Federal Court Denied Motion to Stay Approvals for Offshore Wind Facility.
• 6/24/2024- Motion for stay or preliminary injunction denied. Federal Court Again Declined to Stop Offshore Wind Farm Off Rhode Island Coast.