Lawyers for and against a proposed Greenbrier County windfarm pleaded their cases for two hours Wednesday, and now the fate of 23 miles of ridgetops and 124 wind turbines rests in the hands of five state Supreme Court justices.
The high court will decide whether the state Public Service Commission erred in its August 2006 approval of a conditional building permit to the Chicago-based Invenergy for its $300 million Beech Ridge Energy windfarm.
Early in the proceedings, Justice Brent Benjamin quickly pointed out the high court’s role in deciding this controversial issue that’s been the center of heated opposition in Greenbrier County for nearly three years.
“We are not here to supplant the commission’s decision with one of our own liking,” Benjamin said. “It’s not our job to make policy, it’s our job to look at the law. We don’t want to become an administrative agency here.”
The PSC issued the green light under the premise that Beech Ridge fulfill 25 separate conditions of approval. Mountain Communities for Responsible Energy made one of those conditional requirements their main argument Wednesday.
One condition mandates the approval of the state Historic Preservation office. This required Beech Ridge to present that office with a five-mile radius map highlighting area churches and historical sights.
“Beech Ridge presented absolutely a minimal amount of evidence regarding the impact on cultural and historical landmarks,” MCRE lawyer Justin St. Clair told the justices. “Essentially, the (PSC) has written the cultural and history rule out of the siting certificate.”
St. Clair further said a letter from Historic Preservation stated there was “insufficient evidence” to make a decision. He also argued there was no way to challenge any final decisions made by Historic Preservation.
However, PSC lawyer John Auvill told the court an additional hearing would be held to determine if all 25 conditions had been met by Beech Ridge prior to construction.
Which prompted Chief Justice Elliott “Spike” Maynard to ask an obvious question:
“Why are we having this hearing today then? This doesn’t make sense.”
Justices Robin Davis and Joe Albright also made similar queries during the hearing.
“Why not attack the (Historic Preservation office) rather than to attack the PSC?” Albright asked St. Clair.
Repeatedly, Maynard asked the petitioners what they wanted the high court to do. Jeffrey Eisenbeiss, who filed his appeal “pro se” – without the aid of a lawyer – summed up his argument in his first few sentences to the court.
“We are here today to respectfully ask the court in relief in dismissing the final orders of PSC in granting a siting certificate to Beech Ridge,” Eisenbeiss said. “My core objections concern that the PSC erred in their discretion and the use of authority to appraise and balance the interest of the public … by failing to conduct any thorough independent evaluation of all respective positions presented in this case.”
Eisenbeiss said the PSC relied on Beech Ridge’s experts and did not independently evaluate any adverse claims before issuing the conditional permit.
“I am captivated by your argument in this regard,” Albright responded. “I understand your argument to be … the staff of the PSC lacks the expertise that you want addressed and therefor in order for the PSC to articulate a reasoned, balancing of the interests (of the public), it is essential for the PSC to supplement its staff to have before it the expertise that is at least equal to those presented by the applicants.”
About 10 members of MCRE traveled from Greenbrier County to watch the hearing. State Sen. Jesse Guills, R-Greenbrier, a stout opponent of the windfarm, also watched a majority of the proceedings.
The high court has at least three options concerning the appeals. It can reject the appeals, dismiss the building permit or send Beech Ridges’ application it back to the PSC with instructions, officials say.
Although no timetables were given, a decision must be rendered by the court prior to its November session.
By Christian Giggenbach
9 January 2008
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