Approximately 60 Newberry Springs residents attended a legal
presentation on Saturday, April 23, 2022, at the Newberry Springs American
Legion Post 751. The meeting included a question and answer session
centered on the possibility of filing a tort action against Clearway Energy
for the blowing sand being created by Clearway Energy's Daggett solar power
Richard D. McCune, Jr., a partner and attorney with the law firm
McCune,Wright, Arevalo, provided an overview
of the process of filing a 'mass action' lawsuit for the recovery of damages.
A class action suit is where the plaintiffs all have a similar
injury resulting from a faulty product (or other tort). Procedurally, in
a class action, the evidence relates to each plaintiff and the plaintiffs are
treated collectively. In a mass action, each plaintiff has a different type
and degree of injury and each plaintiff must separately provide satisfactory evidence
of their individual injury.
In a mass action, each plaintiff's separate injury
is argued separately under the umbrella of a single action. Each plaintiff
can settle individually or proceed to trial.
While some attendees at the meeting spoke of being
significantly impacted and damaged by the blowing sand, little emphasis during
the discussion was made of the microscopic silica dust that is a major
The 5.5-square mile industrial project was intentionally placed
in a known and hazardous Sand Transport Path upwind to a residential community
solely for a greater profit for Clearway Energy.
Clearway could have placed its project anywhere upon millions
of acres set aside for solar development by the federal government in the DRECP
and elsewhere. But to cut construction costs, Clearway Energy knowingly,
and with premeditation, callously sacrificed the health of Newberrians for its
While attorney McCune made several comments that medical
would be a part of any possible litigation, the emphasis of the discussion
was largely placed upon the physical damage to property, emotional injury,
property devaluation, harm to animals, and the disruption of normal living.
While I feel that there is certainly sufficient harm for some to
now file litigation, for most residents the real damage will come in the form of
the microscopic carcinogenic silica dust damaging their health. In some cases,
the silica dust may lead to a lengthy, painful, and suffocating death from lung
For most, the time isn't right to file now. I personally
don't wish to file too early and to be possibly barred from later filing when my
Plaintiffs, such as myself, would have trouble at this early
time substantiating sufficient proof of injury due to the lack of an adequate
medical baseline. If we plan to continue to live in Newberry, we need to
immediately establish documentation of our current medical condition.
McCune opined that it would be unwise to seek an
injunction to stop the solar development from creating the toxic hazard as the
County had a lot of discretion in licensing the solar project. However,
the corrupt County bent over backwards in violating CEQA, the state's Social
and Economic Justice criteria, County Code, and other regulations in approving
McCune stated that if enough residents sign up for litigation,
and if his firm was to represent the Newberry's residents, that litigation could
be filed in three weeks.
A three-week timetable shocked me. To properly
understand the County's Land Use Services' perverse history and what has
transpired in leading to this point, would require more time to compile
and organize the data to give the matter justice.
After regularly writing published blogs for over four
years warning of this foreseeable health disaster, it is interesting to
witness certain residents finally waking up to the problem at their
Newberry is now realizing the consequences of doing nothing
and of not being proactive. A great weight of the blame falls directly
upon the community's poor CSD leadership and on the community not holding
the CSD board members accountable.
The damages that Newberry is now experiencing have not
happened in a vacuum, Newberrians have allowed it to happen by their
apathy. Where there is apathy, others will take advantage.
Another opinion given on Facebook: