November 28, 2012

Whistling Ridge wind farm proposal process moves to Washington Supreme Court

SVERRE BAKKE | As of Tuesday, November 27, 2012 | Hood River News |

The administrative record of decision for a proposed wind power project in southeastern Skamania County has been transferred to the Washington Supreme Court for review.

Thurston County Superior Court Judge James J. Dixon issued an order Oct. 26 that granted the state’s motion to certify the state Energy Facility Site Evaluation Council’s Whistling Ridge Energy Project record of some 38,000 pages of documentation as complete and ready for direct review by the Supreme Court.

“At this stage in the proceedings, no party is objecting to the completeness of the administrative record or moving to add additional documents to the record,” Dixon wrote in his Oct. 26 order. “The Court finds that the administrative record at this time is sufficient and complete for Supreme Court review and that review can be made on this record.”

Kyle J. Crews, the assistant attorney general representing the state in the case, told The Enterprise last Thursday the Supreme Court “might hear this case in late March 2013 or early May,” based on its case load and a statutory provision to expedite such matters.

Crews said the court’s examination of the Energy Facility Site Evaluation Council (EFSEC) record vis-a-vis Whistling Ridge might entail all 32 claims raised by petitioners Friends of the Columbia Gorge Inc. and Save Our Scenic Area (SOSA) in their petition for judicial review “or fewer if they choose not to raise certain issues in their opening brief.”

The outcome of the Supreme Court review will be final, though “the court has the power to remand the case to EFSEC, if it determines further action is necessary at the administrative level,” Crews noted.

Nathan Baker, staff attorney for the Friends, said his group plans to proceed with its challenge to the project approval before the Supreme Court because it believes “the Whistling Ridge Energy Project is still a poorly planned project at an inappropriate location, the project remains inconsistent with Skamania County’s land-use laws, and it continues to not make sense economically.”

In March of this year, Gov. Christine Gregoire authorized the Whistling Ridge Energy Project – as a 75-megawatt wind farm with no more than 38 turbines – based on EFSEC’s recommendation to approve it.

EFSEC is the state agency charged with statutory authority to evaluate and license large-scale energy facilities. Alternative energy projects (wind, solar, landfill gas, biomass) of any size, and planned for localities that lack the resources to properly screen them, can “opt in” to the EFSEC review and certification process. That’s what happened with the Whistling Ridge project, because Skamania County was not prepared to take it on.

The wind power project would be built across 1,152 acres of commercial timberland in unincorporated southeastern Skamania County, lying roughly between Willard and Underwood, that’s owned by SDS Lumber Co. and Broughton Lumber Co. The project’s applicant and developer is Whistling Ridge Energy Partners LLC. The applicant applied to for a permit to build its project in March 2009.

Attorneys for Friends and SOSA filed a petition for judicial review with Thurston County Superior Court at the end of August on grounds the administrative record was incomplete and needed to be corrected and/or added to. On Sept. 20, attorneys for the state and its fellow respondents (intervenors Whistling Ridge, Skamania County and Klickitat County Public Economic Development Authority) moved to certify the record for Supreme Court review. The legal wrangling concluded on the last Friday of October, when Dixon issued his order pursuant to respondents’ motion.

Assistant AG Crews argued in his reply to petitioners’ response to his motion to certify dated Oct.23, “The necessary final and conclusive answers to the important legal questions raised in the Petition for Review can only be given by the Supreme Court.”

Crews added, “These answers will allow this project to move forward, resolve existing uncertainty attending EFSEC’s review process, and enable EFSEC to undertake the necessary process to correct the fault lines exposed through this proceeding.”

In late September, respondents stipulated to some additions to the record but “successfully argued that the record was closed under the Administrative Procedures Act and the record should not expanded over and above what EFSEC and the governor had before them to review, in order to render their recommendation and decision respectively,” Crews told The Enterprise on Oct. 15.

Dixon issued an order Sept. 28 that granted and denied certain additions to the existing record sought by petitioners Friends and SOSA. The result was a replacement record that is now going to the Supreme Court.

According to Adam Kick, Skamania County’s prosecuting attorney, the Superior Court by statute is responsible for certifying the EFSEC record for purposes of judicial review.

Kick noted, “The statutory criteria for supplementing the record established before EFSEC are pretty strict, so limit the court’s ability to add documents to the record.”

After certification, the work of the Superior Court is done, Kick said, “and the final step in review is a hearing – and briefing – before the state Supreme Court.”

As to the significance of the documents petitioners wanted to add to the record, Kick added, “The county’s position is that they wouldn’t change EFSEC’s rationale for approving the project. Keep in mind, with a (nearly) 40,000-page record, there is not much, if anything, EFSEC didn’t have before it.”

EFSEC last had one of its decisions reviewed by the Supreme Court in 2008. In the case of the Kittitas Valley Wind Power Project, the court received the petition for review in February, heard oral arguments in June and rendered a ruling in EFSEC’s favor that November.

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