The Wind Committee of the West Virginia Highlands Conservancy has approved and is funding an effort to advocate for a substantial overhaul of the Public Service Commission’s (“PSC”) “Siting Rules for Exempt Wholesale Generators” (Title 150, Series 30 of the WV Code of State Rules). The Siting Rules govern applications to the PSC by entities not directly affiliated with or acting as a public utility serving retail customers of electricity for “siting certificates,” which authorize the construction of an industrial wind facility in the State of West Virginia.
On March 8, 2003, the West Virginia Legislature enacted West Virginia Code §24-2-11c, which governs the consideration of siting certificate applications by the PSC. Under this statute the PSC is required to, in considering an application for a siting certificate, “appraise and balance the interests of the public, the general interests of the state and local economy, and the interests of the applicant.” Upon the statute taking effect, the PSC, on June 2, 2003, issued General Order 255.1, which initiated a process to craft the present Siting Rules. A wide variety of participants, including the Conservancy, submitted comments regarding what the final version of the rules should contain, and certain parties participated in an evidentiary hearing before the PSC. On January 5, 2005, the PSC issued an order in G.O. 255.1 which set forth the preliminary Siting Rules, subject to an additional notice and comment period. The final Siting Rules, in the form they exist today, were adopted by the PSC by order dated July 12, 2005.
Though the Siting Rules pertain to generating facilities utilizing coal, natural gas or a variety of other fuels, the most prevalent and controversial application of the rules has been in the context of applications to build industrial-scale wind turbines to generate electricity. Thus, the focus of this project is to seek revisions to the Siting Rules to provide better protection of the environment and communities in the vicinity of further proposed industrial wind facilities.
An overhaul of the Siting Rules could essentially be accomplished by one of two mechanisms:
• Petition for Rulemaking to be Filed with the PSC: this would constitute a direct request to the Commissioners that they initiate a rulemaking procedure, the end result of which would be an entirely new set of siting rules. The drawback of this approach is that the PSC has the discretion to simply decline to do so. The upshot would be, at minimum, getting some media attention and therefore, public awareness, directed at the negative impacts of industrial wind energy development in West Virginia.
•Lobbying the State Legislature: this effort would propose the enactment of a statute that would direct the PSC to carry out the rulemaking process described above. The upshot of the passage of such a law is that the PSC cannot decline to do something that the Legislature directs it to by law, within certain constitutional constraints.
Unfortunately, while they don’t directly emit the particulate matter, sulfur dioxide, nitrogen oxides and carbon dioxide which steadily emerge from the stacks of legacy coal-fired power plants in West Virginia, utility-scale wind turbines have done serious damage to the ecology and aesthetics of the highlands spanning much of the north eastern counties of West Virginia. The Conservancy believes that wind turbine installations have been, and will continue to be, the target of a definite majority of applications filed with the Commission under W. Va. Code § 24-2-11c. Though the Siting Rules were the product of a meaningful rulemaking process initiated ten years ago by the PSC, the Conservancy observes that, in practice, they have failed to provide necessary protections for the natural environment, the scenic splendor of public lands, and the rural character of surrounding communities. In light of the Commission’s consideration of several applications under the Siting Rules and following the commencement of commercial operation of three large industrial wind energy facilities in the state emerging from this process, the Conservancy respectfully asserts that the time to revisit and revise the Siting Rules has arrived.
Over the past decade, the Commission has applied the Siting Rules in a variety of cases, several of which have involved applications to construct and operate industrial wind energy facilities. Though the Siting Rules cover a fairly broad range of topics regarding the potential impacts of generating facilities, to date the rules most subject to controversy and the presentation of conflicting evidence have largely related to the detriment to the environment generally and to wildlife in particular, disruption of the viewshed, diminished integrity of historic resources, and the introduction of noise into extremely quiet rural environments. The applicable rules in these subject matter areas will be the focus of this endeavor; however, the Conservancy welcomes the prospect of revising other components of the Siting Rules to better promote the public interest.
The Conservancy sets forth four overarching observations demonstrating the need for revision of the Siting Rules. First, the Siting Rules do not require applicants to present the best scientific and technical data and analysis available regarding a project’s impacts.
Second, the Siting Rules concern data and call for conclusions requiring certain scientific and technical expertise of individuals outside the Commission’s purview, yet no mechanism is in place to timely solicit and obtain the assistance of those parties, including other agencies within the state government wherein the experts reside.
Third, the Siting Rules do not provide any firm criteria for the Commission’s imposition of pre-construction and post-construction conditions in an order granting a siting certificate.
Fourth, the Siting Rules 300-day decision window provided forces the Commission to analyze on incomplete information the impacts imposed by a proposed facility, and further forces the Commission to prognosticate the eventual findings and conclusions of other government agencies with expertise the Commission lacks.
Again, no one among the Commission Staff possesses education, training, or experience in hydrology, biology, noise or computer modeling of viewshed impacts. Yet, under the present statutory scheme, Staff witnesses must pretend to be experts in these areas. The timelines of various regulatory consultations and approvals in relation to such a large-scale industrial installation as a wind turbine facility do not neatly overlap. For example, the issuance of an NPDES permit from the West Virginia Department of Environmental Protection may not occur until well after 300 days from the submission of a wind developer’s siting certificate application to the PSC. Approval of a wind developer’s wetland delineation by the Army Corps of Engineers may not be finalized until well after issuance of the NPDES permit, and so on.
The proposed revision of West Virginia Code § 24-2-11c rests upon assumptions, each of which the Conservancy believes to reflect the public interest and the cause of justice:
(1) The PSC possesses relevant expertise in the regulation of electric utilities and the facilities traditionally operated by those utilities. Its regulation of exempt wholesale generators under federal law (in this circumstance, all industrial wind facility developers coming on the scene) should focus upon those same aspects, and it should not be placed in the precarious position of foretelling or divining the findings and conclusions of agencies charged with the protection of water resources, wildlife, and the like.
(2) Notwithstanding the existence of certain public notice requirements set forth in connection with various other regulatory processes, industrial wind facility developers should not be permitted to proceed behind the scenes in obtaining regulatory approvals, and in no event should be permitted to obtain such approvals and permits after the conclusion of the evidentiary hearing in a siting certificate case before the PSC.
(3) Intervenors in cases before the PSC, particularly industrial wind energy siting certificate cases, should not carry the burden of proof in any aspect of the case. It should always be the burden of the energy developer, and not that of private citizens, to prove the absence of impacts or the adequate mitigation of such impacts.
(4) Proceedings before the Commission under West Virginia Code § 24-2-11c should be accompanied by a policy encouraging greater disclosure of information about an applicant and its proposed project, rather than less disclosure.
(5) Impacts from an electric generating facility should be imposed within reasonable geographic proximity to where the majority of the benefits are incurred. West Virginia citizens should not absorb further externalities of expanded electric generation when the state already generates more than twice the electricity as its residents consume, and there is no indication that this gap in generation and native consumption will narrow at any time in the foreseeable future.
(6) Perhaps, most importantly, because the activity of industrial wind facility developers seeking to reap the benefits of renewable portfolio standards, are responding to market opportunities rather than to demand for electric generation, such entities should be held to a higher standard than our traditional public utilities. The two terms can be distinguished in that “demand” refers to the projection of customer load in a given year in the state or in the PJM region, compared to the available generating capacity, while a “market” exists whenever an energy developer can procure a buyer, typically a utility or electric cooperative purchasing power over a 20-year period under a “power purchase agreement.” Recent information released by PJM Interconnection, our regional transmission organization, indicates a decline in projections of increasing demand in the region over the coming years. PJM has sufficient generating capacity for its constituent utilities to serve electric customers for many years to come; the construction of “alternative” or “renewable” energy sources will not serve to displace any conventional fossil fuel-fired generation.
The Conservancy can conceive of alternate ways of modifying the siting certificate statute, particularly to impose additional affirmative duties upon the PSC to consult directly with other governmental agencies. Though augmenting the duties of the Commission would be preferable, the Conservancy feels that the revisions the Conservancy will propose constitute a reasonable expansion of the scope of the PSC’s review of siting certificate applications. The result in practice may be actually to reduce the burdens on the Commission in such cases.
In the interest of providing for less deference to entities not legitimately invested in our state and its future, and in the interest of granting greater weight to the rights of the citizens of West Virginia, we hope that we will find willing and able support at the PSC or to introduce our proposed revisions in this session of the West Virginia Legislature.
Submitted by the West Virginia Highlands Conservancy Wind Committee
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