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Will wind case wind up in Supreme Court?

While the State Corporation Commission continues to evaluate Highland New Wind Development’s application for a wind utility permit, lawsuits surrounding the proposal still remain unresolved.

More than a year ago, Highland citizens and landowners legally challenged Highland County supervisors’ decisions regarding the facility. Originally three cases were brought against the county – one challenging the decision to grant HNWD’s local conditional use permit; one challenging the county’s decision on height requirements; and one challenging the county planning commission’s finding with regard to the comprehensive plan.
The first two have been combined in the courts. All were appealed by the citizens’ attorney, David Bailey, to the Virginia Supreme Court.

On Feb. 14, Bailey will be allowed 10 minutes before a panel three Supreme Court judges to convince the court to take the case for a full hearing. “They usually only accept about 10 percent” of the cases appealed, Bailey said this week. “I’ve got my fingers crossed. These are good claims. We are contending they are violations of (the county’s) statutory authority, and they tend to take those cases.”

County attorney Melissa Dowd and her colleagues will present the defense for supervisors.

Briefs have already been filed with the courts. Once each side gives its 10-minute argument, the judges have 10 days to decide whether the case will proceed to the full Supreme Court.
If it chooses not to take the case, “that’s the end of it,” Bailey

If the court does take the case, it could hear arguments this fall after a full briefing schedule has been issued and completed. Then, attorneys will each have 30 minutes to argue before the Supreme Court.

Meanwhile, the SCC is likely to issue its decision on whether to grant a state permit to HNWD to build and operate the 39-megawatt wind utility it proposes on Allegheny Mountain. Recently, SCC staffers recommended the commissioners grant the permit if environmental issues were resolved. Bailey says he wasn’t surprised. “That was fully predictable,” he said. “Environmental protection is the whole key.”

Bailey says at least one of the SCC commissioners has written previous opinions about protecting the environment, and that the SCC has been directed by the General Assembly to follow the advice of state environmental agencies. Most of those, in this case, have urged caution, saying the potential impacts to wildlife, including endangered species, are significant, and that the project should undergo more assessment before and after construction. Some have said HNWD hasn’t provided them enough information to issue an opinion.

By Anne Adams “¢ staff Writer

February 1, 2007