The debate over a proposed wind farm in northern Greenbrier County reached the West Virginia Supreme Court of Appeals January 9.
The arguments didn’t focus on what proponents and opponents usually say to tout or criticize wind energy. The issue before the court was whether the state Public Service Commission followed its own rules in approving a permit for the Beech Ridge Energy project.
That permit lists 25 separate conditions that must be met before construction on Beech Ridge is to begin.
The Chicago-based company Invenergy wants to build 124 turbines that would stretch across 23 miles of ridgeline in the Cold Knob area owned by MeadWestvaco.
Beech Ridge was among the first wind projects to go before the state Public Service Commission since it adopted new siting rules and application procedures for such projects.
David Buhrman, of Mountain Communities for Responsible Energy, has said the application from Beech Ridge Wind Energy “didn’t come anywhere close” to meeting those new requirements.
During an initial hearing before the Supreme Court in April, many of the questions asked by the justices centered around whether the PSC had the authority to conditionally grant the wind turbine building permit upon the subsequent approval of outside agencies.
Wednesday’s arguments lasted more than two hours and revisited some of those same issues. Representing Mountain Communities for Responsible Energy, attorney Justin St. Clair said the PSC did not weigh all the evidence in the case.
Justice Brent Benjamin wanted to know what he meant by all the evidence.
“When you say all evidence, I mean how do you define all evidence?” Benjamin asked. “Is that the standard, or is the standard that the PSC must have adequate evidence by which to make a decision as an administrative body?”
St. Clair responded that state law offered only vague guidance in that respect.
“The legislature says you need to weigh, appraise and balance the interests of the public, the general interest of the state and local economy and the interest of the applicant,” he said.
Benjamin said he was wary of the court taking on the role of a regulatory agency.
“We’re not here to supplant the commission’s decision with one of our liking,” the justice continued. “It’s not our job to make the policy. It’s our job to look at the law and whether or not certain procedures are followed, whether certain adequate safeguards were met.”
St. Clair argued the commission relied on Beech Ridge Energy officials for expert testimony that should have been independent. Commission attorney John Auvill disputed that accusation.
“You have to get permits or letters from Fish and Wildlife who are experts in Fish and Wildlife,” said Auvill. “You have to get a permit from SHPO, you have to go to DEP and make sure all these things are done.”
One condition of the PSC’s permit mandates the approval of the State Historic Preservation office. This required Beech Ridge to present that office with a map highlighting area churches and historical sights within a five-mile radius of the project.
St. Clair said Beech Ridge skimped on its map, citing a letter from SHPO stating there was “insufficient evidence” to make a decision. He also argued there was no way to challenge any final decisions made by SHPO.
However, Auvill told the court that the PSC would hold an additional hearing to determine whether all 25 conditions had been met by Beech Ridge prior to construction.
“Why are we having this hearing today then,” asked Chief Justice Elliot “Spike” Maynard. “This doesn’t make sense.”
Several times during the proceedings, Maynard asked the petitioners what they wanted the court to do.
Greenbrier County resident Jeffrey Eisenbeiss, who filed his appeal and appeared without the aid of a lawyer and lives within a mile of the project site, said he wanted to see the court dismiss the certificate the PSC granted to Beech Ridge. Eisenbeiss said the PSC relied on Beech Ridge’s experts and failed to independently evaluate any adverse claims before issuing the conditional permit.
The West Virginia Supreme Court of Appeals is not expected to render its opinion on the Beech Ridge project until this summer.
West Virginia currently has one wind-power project in operation: the 44-turbine, 66-megawatt Mountaineer Wind Energy Center in Tucker County, owned by FPL Energy, of Juno Beach, Florida.
In Grant County, the 150-turbine Mount Storm project is being spearheaded by Shell Wind Energy, a division of oil giant Royal Dutch Shell, and London-based NedPower. The facility is expected to generate up to 300 megawatts. As with the Beech Ridge project, the PSC has granted its approval, but it faces a legal challenge in Grant County Circuit Court by Friends of the Allegheny Front.
The PSC blocked a third project, Liberty Gap, in Pendleton County, on the grounds that necessary information in its application was either missing or inadequate.
Last month, the PSC received notice from AES Laurel Mountain, LLC, that it intends to construct a facility in Randolph and Barbour counties. According to the company’s website, the project would include 50-80 turbines generating 125 megawatts on approximately eight miles of ridgeline northwest of Elkins.
Just over the state line, in Highland County, Virginia, Highland New Wind Development has plans for a 39-megawatt facility on Allegheny Mountain. That project would be visible from Pocahontas County’s historic Civil War site Camp Allegheny, near Bartow. Plans for the wind farm were recently approved by Virginia’s equivalent of the Public Service Commission–the State Corporation Commission. A group of Highland County citizens filed a lawsuit against the Highland County Board of Supervisors over the conditional use permit that was issued for the project. In September, the Virginia Supreme Court upheld the permit issued by the supervisors.
With most of its high, windy ridges under the ownership of the Monongahela National Forest, wind developers have yet to openly propose similar facilities in Pocahontas County. In time, however, that may change. In Vermont, the U.S. Forest Service is reviewing a proposal from Deerfield Wind to build 17 wind turbines on Green Mountain National Forest land. A draft environmental impact statement for the project is expected to be released by the Forest Service later this month.
Such projects on National Forest lands would be governed by the Forest Service’s Special Use permitting regulations.
The Forest Service just ended a public comment period on a proposed addition to the Special Use Handbook that deals specifically with wind projects on the National Forest System.
The changes would take into account the effects of wind projects on tourism, wildlife and public accessibility as well as scenery and noise management issues, as well as site restoration after a project has been terminated or a permit is revoked.
By Drew Tanner
24 January 2008
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