Senate bill on wind contains new language
Credit: By Anne Adams, Staff Writer, The Recorder, www.therecorderonline.com 3 February 2011 ~~
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RICHMOND – Those opposed to Sen. Frank Wagner’s proposal for wind energy ordinances are relieved the bill contains new language this week, but what the new bill says is open to interpretation.
“I don’t know what it means,” said Highland supervisor Jerry Rexrode Tuesday. “I guess I’m not educated enough to figure it out,” he quipped.
Wagner’s Senate Bill 862 had originally proposed that all counties in Virginia create local ordinances on wind energy development – a move opposed by the Virginia Association of Counties and several lawmakers because it would have stripped local governments of their authority to enact ordinances as they see fit, or not at all.
Monday, the bill came before the Senate Committee on Commerce and Labor. VACo and the Virginia Alternative and Renewable Energy Association, which supported Wagner’s original bill, had agreed on a substitute bill that does not require ordinances on wind or solar, but if localities do enact them, the ordinances are to promote that kind of renewable resource development. According to the revised bill, such ordinances must:
• Be consistent with the Commonwealth Energy Policy;
• Provide “reasonable criteria” for renewable energy project sites that protect localities “in a manner consistent with the goals” of the Commonwealth Energy Policy to promote generating power from wind and solar; and
• Include “reasonable requirements” for limiting noise, requiring setbacks, protecting scenic viewsheds, limiting shadow flicker, and decommissioning abandoned or non-functioning projects.
Also, the bill states, “Any measures required by the ordinance shall be consistent with the locality’s existing ordinances.”
Sen. Creigh Deeds, who represents Bath County, abstained from voting on the measure. “I planned to vote against it … the (new) bill doesn’t do a whole lot … it felt benign, but I wanted more time to think about it,” he said Tuesday. “I wanted to make sure there were no unintended consequences … This has to be a local issue. It has to be dealt with locally. I was afraid any language like this could send the wrong signal. I don’t know whether I’ll vote for it or against it when it comes up again … by abstaining, that puts a marker out there. There are so many bills, and you have to think about their language, and the implication on 8 million people in Virginia plus the localities you represent. I was not 100 percent comfortable with this bill.”
In Monday’s committee meeting, Deeds asked Wagner whether the Senator could assure Deeds he would not amend the bill later, to something similar as first proposed. “He said, no, this is it,” Deeds said. “So, I got the answer I wanted but I still wanted more time.”
Asked about the last line of the bill, which states a locality’s wind or solar ordinance should be consistent with other local ordinances, Deeds said, “You have to have that – that’s the saving grace of this bill.”
Bath County is close to passing an ordinance addressing smaller wind energy projects, and hopes to follow it with an ordinance for industrial facilities. Deeds said his home county should forge ahead with both. “I think they’ll be OK in doing that,” he said.
In Highland County, an industrial wind project has been in the works for nearly nine years. Highland New Wind Development LLC, of Harrisonburg, hopes to construct the state’s first wind plant on Allegheny Mountain. The county has no ordinance in place for wind energy, and county supervisors have no plans to enact one. County officials do not believe this bill would affect HNWD’s project, which has already been permitted by the county and the State Corporation Commission.
Hightown resident Dan Foster, who attended the Commerce and Labor Committee discussion this week, praised Deeds and other Senators for having the common sense not to support Wagner’s original proposal. “They’re not going to sacrifice something as sacred as local authority for this,” he said. “The state is adamant about endorsing the Commonwealth Energy Plan, but it reads like a mission statement. They were asking localities to write an ordinance consistent with that policy, which is like asking localities to clarify something that’s unclarifiable.”
Foster suggested state officials look to the HNWD project for guidance on siting such facilities. “We have a project to look at here, one we know so well. We have a situation with a project that’s met the state approval, met Highland County’s conditional use permit approval, but not met the approval of investors; it seems to me, that’s the case. The state is trying to facilitate renewable energy. Should it shore up regulation, or relax regulation? What would make investors more secure? The state and local governments are out of the picture. The developer and investors are negotiating. I would think we would not want to influence that negotiation by lowering our own standards,” he said.
“The question is: Is this viable? For some reason, the developer and investors can’t come to terms.
“We should acknowledge people like Creigh Deeds. He asked some good questions. (Highland supervisor) Robin Sullenberger and VACo did all they could to maintain local sovereignty,” Foster added.
Sullenberger was in Richmond this week, though he could not attend the committee meeting, he held several conversations with other officials and groups about the bill.
“My perception is, the state’s energy plan is purposefully vague because they want maximum flexibility and ease of interpretation,” he said. “Sen. Wagner and his allies have the opinion that local elected officials tend to be parochial in nature, that they are not inclined to look at the big picture. And that’s not surprising – county government officials are elected locally, and they focus on local issues.”
State officials, he said, are trying to push Virginia to become the “Energy Capital of the East,” but there’s “a perception that Virginia can’t meet that challenge unless there’s a streamlined process for these (projects).”
State officials hope to make it more difficult for “special interest groups” and individuals to derail renewable energy projects. The new “Permit By Rule” law, which leaves renewable energy projects less than 100 megawatts to the Department of Environmental Quality instead of the SCC, is one example of that push.
“There is the feeling that every project, no matter where it’s located, will have opposition from someone; that’s the world we live in; I heard that a lot. Their (the state’s) intent is to make sure the process gets consolidated.” However, he noted, there is strong opposition from local jurisdictions for anything that imposes laws on land use decisions. “That’s pushing localities too far, and that was roundly debated for a couple of weeks,” Sullenberger said.
VACo, he added, is not likely to be deeply involved in SB 862 from this point forward, now that the requirement for localities to enact wind/solar ordinances has been removed. Sullenberger hopes to have a clearer understanding of the bill’s new language after further interpretation from VACo. The bill as written, he said, “doesn’t do a whole lot … the overall objective may be to send a message from the state – that the state’s going to actively pursue these kinds of projects and expect reasonable acceptance from localities. But they know better than to push too far; they certainly recognize they can only be so Draconian … Even in a Dillon Rule state like this, local autonomy is a mantra everybody lives by in Virginia, and you can’t be imposing guidelines without an uprising.”
Asked whether Sullenberger would consider an ordinance for Highland related to wind energy, he said he wanted to clarify the implications of this bill before deciding whether more was needed in Highland, or what was appropriate for the county. He pointed to recent conversations with Mustoe resident Rick Webb, who has long opposed wind energy development here due to the risk of environmental damage. “Rick was implying that I was being complacent,” Sullenberger said. “But I don’t have any clarity, and with no clarity, it’s hard to have a reaction on this.”
Webb wrote to Highland supervisors last week, urging them to oppose Wagner’s bill, even if it were changed.
“I’ve been told indirectly that Highland New Wind Development is somehow lobbying Senator Frank Wagner to prevent such changes to his bill,” Webb told the board. “If this is correct, it’s one more, among many, examples of HNWD’s disrespect for the people of Highland County and their elected officials. I assume that HNWD plans to somehow come back with a new, and far less stringent permit under Wagner’s very lax permit by rule – replacing its SCC permit. That would mean coming back to Highland County for a new approval. At that point Wagner’s bill, if enacted, would tie your hands. My expectation is that there will be some sort of compromise on Wagner’s bill that will grandfather existing local ordinances or ordinances that are effective prior to some date established by the bill. Thus it will be more important than ever for Highland County to enact a protective ordinance as soon as possible. I suggest it should be as simple as prohibiting structures over 100-feet tall, excepting perhaps cell towers. Such an ordinance could always be relaxed later if deemed appropriate. The main thing is to preserve your options now while you can … our elected officials need to stand up now for Highland County. It will be very hard to understand if they don’t.”
Sullenberger replied. “I’ll spend most of the next three weeks in Richmond, and assure you that any issues germane to Highland County will be addressed,” he told Webb. “Senator Wagner knows all too well that we oppose any attempt to usurp local authority, although that will do little to slow his efforts. Given the administration’s bent on making Virginia the ‘Energy Capital of the East,’ related legislation will continue to move forward and there will be significant support … This issue will not go away, nor should it, based on the many challenges we face in our energy future. It must, however, be a reasonable and rational debate. I am an advocate for compromise and progressive technology that does not come with egregious environmental risks … a balancing act, no doubt, and one that is obviously an ongoing struggle for you.”
Webb replied, “It’s my view that ridgeline wind energy development in Highland County and western Virginia is a bad idea. It’s driven mostly by big subsidies, and it’s not progressive in any positive sense. And I’m convinced it’s just a matter of time before that reality becomes the general perspective. In the meantime though, there will be substantial damage, and unfortunately Highland County may prove to be the case in point. It’s also my view that we need to think about the purpose and value of compromise. Although sometimes it’s the best we can do, we have to draw the line somewhere. With respect to environmental loss, I would draw the line somewhere quite a bit short of ‘egregious’ risk. Environmental damage is incremental, cumulative, and generally irreversible,” he said. “I’m sure that you share the view that Highland County is unique with respect to its uncompromised natural and human environment. Most every day you get to compare Highland County to Harrisonburg or Richmond. So you know what’s at stake.”
Sullenberger told Webb he intended to use “every means available” to help defeat the bill. “You should be aware, however, that I am concerned about the precedent setting impact of circumventing local authority, not specifically trying to obstruct anything directly related to wind development,” he wrote. “I stood up to my counterparts at the time of the original vote because
I believed it was moving too quickly and we needed more time and information before making the decision. I lost the vote and moved on, the way government is designed to work. Your ongoing assertion that a significant majority of people in Highland actively oppose the project is absolute bunk. Those who strongly oppose it are a well organized (my compliments!), fluidly sizable and very vocal minority, bolstered by a significant number of non-resident landowners and environmental/endangered species ‘advocates’ who correctly view it as a bellwether project in Virginia.
“I have great respect for those in the latter category, and can’t deny your personal and professional role as one of the leaders … (But) for every constituent who approached the project with concerns about the legitimate impact, at least ten others were concerned only about aesthetics – the message, they don’t want to look at these hideous things – and that’s verbatim from the vast majority of people who have expressed concerns over all these years,” Sullenberger said. “I hasten to add, with the exception of people like yourself and the same few voices that have continued to complain, I have heard virtually nothing about the project for many months from anyone other than those asking when/if it will actually be built … plus a multitude of comments from those who are horribly sick and tired of reading about it.
“In fairness, I should also add that those who strongly supported the project from the beginning were an even smaller group, and for many of them, it was primarily a property rights issue, not an alternative energy endorsement,” he continued.
“In other words, it has been obvious to me from the outset that the overwhelming and typically silent majority of people in the county do not have a particularly strong opinion one way or the other, and further, the issues that matter to them are not the issues that have been debated, litigated and written about ad nauseam. My inevitable conclusion is that they will accept the project if it’s built and quickly forget about it if it isn’t.”
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