Defendants in Mt. Storm wind lawsuit specified
PETERSBURG — Much of Tuesday’s hearing concerning the wind turbine project coming on line at Mount Storm focused on who should be in court.
A group of plaintiffs living near the 200-turbine NedPower wind-power project under construction adjacent to the Dominion Mount Storm Power Plant is seeking an injunction to stop the project.
NedPower, a Dutch company, is the developer of the project. It plans eventually to install some 200 turbines to be operated by Shell WindEnergy, which has since sold a half interest to Dominion Power of Virginia.
The turbines are being constructed by Mortensen of Minnesota. About 80 of the turbines are nearing completion, with some already on line.
Charleston attorney and former Supreme Court justice Richard Neely, representing the plaintiffs in the case, argued to Judge Phil Jordan of the 21st Circuit that Shell should be included in the suit because he has been unable to get information from NedPower or Shell to pursue his case. He said that the suit was originally filed “before the first footer was laid” and NedPower was the entity listed as building the project.
Neely said that Shell owns NedPower, which he considers to be only a “financial shell” with no employees, through which Shell and Dominion operate.
The companies, through their attorneys, argued that the plaintiffs are requesting information on their operations that have nothing to do with the wind case.
Neely said that Shell and Dominion should be responding to his requests for discovery because they are the companies with the money.
While he wants an injunction to stop the project, he noted that the court has a number of options in the case. One would be for the court “to craft, in advance,” what will happen when the tax credits are no longer available to Shell and other operators.
He pointed to an abandoned wind farm in Hawaii as an example of what might happen in the future.
Neely said that wind energy is a tax credit-driven technology. “It is useless,” he said, adding that wind does not produce power economically. “The energy generated is incapable of being sold on the open market.”
He compared the situation to strip mining and land reclamation where bonds are set to ensure the land is reclaimed.
He said that some entity, the developer or operators, should be ordered to be prepared to take the turbines down if the wind farm ends service.
Attorney Sam Brock of Spilman, Thomas and Battle, representing Shell, said that the suit is a private nuisance action, and what might happen 15 years down the road should not be considered.
He said that Shell does not have to be a party to the suit to provide discovery to the plaintiffs.
Neely said that if a solvent entity such as Shell is not a party to the suit, it will cost the plaintiffs a lot of money for witnesses, money they don’t have.
“NedPower is not solvent,” he said.
Attorney A.L. Emch of Jackson Kelly, a Charleston law firm, representing NedPower, said that while they need to narrow the areas of discovery, that can probably be accomplished within a short time, and discovery can be provided.
He said that the issue of what will happen in the future is hypothetical and he doesn’t see the need to grant relief that hasn’t been proven.
Jordan said that he wants the case to proceed, with NedPower providing discovery at this time.
Neely agreed that if he gets the answers he needs from NedPower he will not ask the same questions of Shell.
It was decided that Emch and Neely would work to determine what questions need to be answered and bring them back to court at a hearing in Keyser on Nov. 20 at 1 p.m. Brock indicated that he would likely be there to represent Shell although Shell is not required to participate.
Emch called the case “a moving target” because the project is continuing construction and leases are continuing to be sought.
He said that some of the original plaintiffs may have dropped out and been replaced by others and that still others may be joining the suit.
Neely said that about 20 to 25 additional plaintiffs may join the suit. He said that he would try to amend the plaintiff list to include those people by the next hearing date.
Jordan initially heard the case a year ago and denied the plaintiffs’ request for relief. They appealed and the West Virginia Supreme Court upheld the appeal, sending it back to the circuit jurisdiction for the “plaintiffs’ day in court” in May. Tuesday’s hearing was the result of that action.
By Mona Ridder
1 November 2007
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