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Wyoming Supreme Court upholds permits for wind turbine projects

This decision is the result of two separate cases involving the permit approval process for a win energy project in the mountains of Converse County, Wyoming. The first case, No. S-12-0060 (Converse Case) came to the Supreme Court of Wyoming on appeal of the district court’s affirmation of the Converse County Board of Commissioners’ decision to grant Wasatch Wind International, LLC’s (Wasatch) application for a Wind Energy Conservation Systems Permit (WECS permit). The second case, No. S-12-0061 (ISC Case) involves a challenge to the Wyoming Department of Environmental Quality, Industrial Siting Council’s (ISC) decision to grant a state industrial siting permit for construction of the project. Both cases are brought by local residents and organizations to prevent Wastach’s proposed construction of a project called Pioneer Wind Park I and II, which would house sixty-two wind turbines along with support structures for the site.

Turning to the substantive issues in the Converse Case, the objectors to the project allege that Wasatch had not met all of the requirements for an application for a WECS permit including an improper traffic study, inadequate financial assurances, and improper notification. The objectors tie all of these allegations together to allege a breach of procedural due process. First, the objectors argue that the traffic survey was inadequate because it failed to consider every road that could be traveled to reach the site. The Court rejects this argument because the statute which lays out this requirement only deals was access, either ingress or egress. While the Court doesn’t disagree that more attention should have been paid to major roads and highways that would lead to connection roads, the Court finds no abuse of discretionary authority on the part of the board and concludes that presented with all the evidence, the board did not act improperly and therefore their decision cannot be disturbed by the Court.

The objectors also argue that Wasatch gave inadequate financial assurances to the Board by having their investor partner, Edison Mission Energy, speak to the board to describe the financial shape of their company. Specifically, the objectors argue that the statute which lays out the requirement for a WECS permit require a developer to provide financial assurances of their own company and not the representations of others. The Court rejects this argument as well. Having been described as one of the top 5 or 6 U.S. companies in the wind energy sector, Edison’s stand-in for Wasatch was proper, especially considering the board had been made aware of the presence of an option-contract between Wasatch and Edison, which Edison told the board it had intended to exercise once the permit process was complete. The financial assurances included reclamation and decommission plans and thus provided the board with enough evidence of the project’s financial stability that the board’s decision could not be viewed as arbitrary, capricious or illegal and therefore their determination cannot be overturned.

The next argument advanced in opposition of the project was that Wasatch failed to deliver proper notification to landowners within one-mile of the project. Throughout the trial, the Court was unable to determine where the one-mile radius began, Wastach argued it was from the closest turbine, while the opponents argued it was one-mile from the edge of all the property. The Court decided it didn’t need to determine an answer to that question because the individuals who claimed improper notification had actual notification as they appeared at public hearings and submitted information to the board. The Court says the opponents failed to establish any prejudice even if they did not receive any required legal notice. The final argument advanced by the opponents in the Converse Case is that the board violated their procedural due process rights. The Court rejects this argument because the board had followed all statutory protocols and did not unfairly prejudice the process by skirting the rules.

Turning to the ISC case, the opponents continue the argument of inadequate financial assurances while also alleging that review should increase the “affected area” to all surrounding towns and counties. First, when addressing the financial assurances, the Court took a different look than in the Converse Case because one dealt with permits under local law while this case deals with permits issued by the State under State law. Nonetheless, while the inquiry is more involved, the Court again rejects the argument that Wasatch had made inadequate financial assurances because the statute at issue expressly authorized investors to the project who are not the principal actors to provide evidence of financial adequacy and the Court was satisfied that Edison had done so in this case. The Court also found that conditioning final approval on additional assurances prior to construction commencing was within the agency’s power. The final argument by the opponents in this case was that Wasatch had not included all areas that could be considered “affected areas” by the statute. The opponents argued that Wasatch had improperly applied a “primarily affected” theory to reduce the size of the “affected area” for purposes of the “threat of serious injury” inquiry. The Court examined two main factors, the environmental impact and the social and economic condition of the project and determined Wasatch had adequately determined the “affected area” and that because the threat of serious injury, as defined by the Court, was only within the area denoted by Wastach, the ISC properly granted the permit to Wasatch.

Northern Laramie Range Foundation v. Converse County Bd. of Commissioners, 290 P.3d 1063 (W.Y., 2012)

The opinion may be accessed at: http://www.courts.state.wy.us/Opinions/2012WY158.pdf