The West Virginia Supreme Court has upheld a decision by the West Virginia Public Service Commission that approved construction and operation of a 124 turbine wind farm on in Greenbrier County.
The operator, Beech Ridge Energy, LLC proposed to construct 124 wind turbines sized at 1.5 Megawatts, mounted on 262 foot tubular steel towers, in addition to 150 pole structures for the transmission line with a total project cost of $300 million. The turbines will span approximately 23 miles along various rural ridgetops located in western and northwestern Greenbrier County. The turbines will be located on a 100,000 acre tract owned by MeadWestvaco Corporation.
Mountain Communities for Responsible Energy , a nonprofit group, and Alicia A. and Jeffrey C. Eisenbeiss, two local property owners, had appealed from the decision of the Public Service Commission approving the project.
The appellants had contended that the application for approval did not contain all the information required by the Public Service Commission’s siting regulations. The appellants had also contended that, while the siting regulations require that information be evaluated before the application is considered, the Public Service Commission allowed some information to be submitted after the project had already been approved. The information to be submitted post-approval included evidence of any required environmental permits, the final endangered species study, and the historical and archeological significance study with any required mitigation plans.
The Public Service Commission has a duty to appraise and balance the interests of the public, the general interests of the state and local economy, and the interests of the applicant. The appellants believed that the Public Service Commission could not possibly have done this balancing when Beech Ridge had never submitted the information necessary to do this balancing.
Although the decision is some twenty one pages long, it is based on a single principle: on matters requiring balancing or any sort of technical application of a statute, close cases are decided in favor of the agency. In this case, that reasoning applied in two ways.
First, the Supreme Court believed that it was within the discretion of the Public Service Commission to determine whether Beech Ridge had submitted the necessary information. The Public Service Commission had a great volume of information before it. The Supreme Court decided that the Public Service Commission’s conclusion that the information submitted was sufficient had some sort of reasonable basis. Thus, the Supreme Court would not overturn it.
Second, the Supreme Court believed that the Public Service Commission had struck a balance between the interests of the public, the economy, and the applicant. While the balance may or may not have been the one the Supreme Court would have struck, the Public Service Commission did have substantial information before it. Beech Ridge had submitted information on employment at the facility and tax revenue to be generated. In this case, as in all review of agency decisions, the Supreme Court was reluctant to second guess judgments of an agency that appeared to be supported by some evidence.
Note: The West Virginia Highlands Conservancy was an intervenor before the Commission but did not participate in the appeal.
1 July 2008
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