The Washington Supreme Court recently rejected a challenge to former Governor Christine Gregiore’s approval of a 35-MW wind farm in Skamania County proposed by Whistling Ridge Energy, LLC. Gov. Gregoire approved the project following a lengthy administrative process conducted by the state’s Energy Facility Site Evaluation Council (“EFSEC”) and EFSEC’s favorable recommendation to the Governor. The Court’s decision is important because it helps define what energy developers must do to mitigate impacts when a project is located near, but not in, a protected area and has potential spillover effects on the protected area. In addition, the decision is important to renewable energy developers in Washington because they have the option of using EFSEC to obtain project approval, which may be especially important where strong local opposition is at odds with state and national goals regarding renewable energy development. The decision is also important to many other types of energy facilities subject to EFSEC jurisdiction, including electric and natural gas transmission projects, LNG facilities, nuclear plants, and large thermal power plants.
The dispute arose because the Whistling Ridge project is near, but not in, the Columbia River Gorge National Scenic Area. The environmental petitioners object to Whistling Ridge primarily because it may be seen from some parts of the Scenic Area, and therefore may interfere with the aesthetic values that the Scenic Area was designed to preserve. In response to these concerns, EFSEC reduced the number of windmills allowed at the project from 50 to 35, and required “micro-siting” to further reduce the aesthetic impacts of the project. With these mitigation measures, EFSEC recommended that Gov. Gregiore approve the project. Gov. Gregiore followed this recommendation.
The environmental petitioners, unsatisfied with the treatment of these aesthetic impacts, then challenged Gov. Gregoire’s decision in the courts. The challenge was certified directly to the Supreme Court, which yesterday rejected the challenge, allowing the project to move forward.
In rejecting a laundry list of arguments raised by environmental petitioners, yesterday’s decision reaches at least two conclusions that are likely to prove important in defining EFSEC’s statutory responsibilities.
First, the decision establishes an extremely deferential standard of review for a Governor’s decision to accept or reject an EFSEC recommendation. As the Court noted, the legislature requires EFSEC to balance the competing goals of helping the state meet a “pressing need for increased energy facilities” while at the same time producing “minimal adverse effects on the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life.” In performing this balancing act, the Court found, the Governor’s decision “does not appear to be subject to any restrictions” and the restrictions on EFSEC are “largely procedural with some guidance as to what issues should be considered.”
Second, the Court concluded that the statute’s requirement that an energy facility employ “available and reasonable methods” to minimize adverse environmental effects does not mandate the use of every available mitigation measure or technology. Rather, as long as the mitigation measures adopted by EFSEC reasonably meet the statute’s environmental goals, EFSEC’s decision will be approved, even if additional mitigation measures were possible.
Using these extremely deferential standards of review, the Court unanimously affirmed EFSEC’s decision and Governor Gregoire’s endorsement of that decision.
If you have questions about the Washington Supreme Court’s decision, environmental and land use permitting and compliance, or other questions related to energy or environmental law, please contact a member of GTH’s Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. We are proud that our partner Jim Waldo was recently named 2013 Lawyer of the Year for Energy and Natural Resources Law, and practice group members Don Cohen, Bill Lynn, and Brad Jones were all named among Seattle’s Best Lawyers.