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St. Croix County Judge: Town of Forest wind farm needs more scrutiny

Despite the fact that St. Croix County Judge Edward Vlack Wednesday ruled that Highland Wind Farm’s noise curtailment plan “ensures compliance” with state wind siting regulations, the judge stated in an order this week that the Public Service Commission did not provide, among other things, “proper notice and hearing” for discussion of the state’s compliance standard.

As part of a ruling issued this week, the judge wrote: “This court concludes that while there are differences of opinion on this issue, there is substantial evidence in the record for the commission to conclude that Highland’s [noise] curtailment plan ensured compliance.

The town, the commission and Highland all point to exhibits and testimony that directly address the issue of the curtailment plan’s ability to comply with applicable standards. The town may not like the conclusion that was reached, but the conclusion the commission reached was clearly supported by substantial evidence in the record.” – Hon. Edward F. Vlack.

In response to the ruling, Madison-based Emerging Energies Wisconsin LLC, founders of the Highland Wind Farm project in the Town of Forest, issued this statement about the judge’s ruling: “We are heartened that the court recognizes that the bulk of evidence and our noise curtailment plan ‘ensures compliance’ with state regulatory rules that led the commission to support our project. However, we are disappointed that after nearly a year of regulatory hearings, judicial review and waiting, Judge Vlack has sent the issue back to the PSC for more hearings. EEW has deep respect for the commission and the important role it plays in these critical matters. We hope that the PSC once again gives us a green light to bring more renewable energy options to Wisconsin, more local jobs and the environmental benefits this project delivers.”

In late September, 2013, the PSC approved the 100 megawatt wind farm known as the Highland Wind Farm that is slated to be built in the Town of Forest in eastern St. Croix County.

The decision, however, was not unanimous. State regulators voted 2-1 in favor of a permit request for the proposed wind farm.

Commission Chairman Phil Montgomery and commissioner Eric Callisto voted yes to the proposal, while Ellen Nowak voted against it. In reaching the decision, the panel members insisted on the requirement that the turbines meet strict noise levels, especially at night, or risk losing its rights to operate.

The wind facility was first proposed in December 2011 by the Emerging Energies of Wisconsin at a cost of $250 million. The wind farm is expected to include 44 wind turbines, with an electric generating capacity of up to 102.5 megawatts.

Court summary and decision

The following is the ruling by the court:

In summary, as to each issue, the Court’s rulings are as follows:

ISSUES OF PROCEDURE

1. Did the Commission provide adequate notice and a proper hearing on the new

Answer: No.

Relief Ordered: Pursuant to Wis. Stat. § 227.57(2) & (4), the action of the matter remanded to the Commission for the purpose of providing proper notice and on the issue of adopting a percentage compliance standard. Commission adopting a 95% compliance standard is set aside and the hearing on the issue of adopting a percentage compliance standard.

2. Did the Commission’s creation of the new compliance standard amount to unauthorized rulemaking that exceeded its authority?

Answer: Yes.

Relief Ordered: Pursuant to Wis. Stat. § 227.57(2) & (4), the action of the Commission modifying its noise protocols to include a 95% compliance standard is set aside.

3. Did the Commission fail to provide a full hearing on the selection of sensitive residences for additional protective standards?

Answer: Yes.

Relief Ordered: The matter is remanded to the Commission, not for further and/or shadow flicker, but for the purpose of allowing the Commission to state why, if it can, based on the record already accumulated, the six residences were selected and the other eleven were not. If, based upon the record herein, the Commission is not able to state why the six residences were selected and the other eleven were not, then the matter is reopened solely for the purpose of allowing the parties to state why other sensitive residences, already identified, should be considered and the Commission can then decide if others, already identified, should be included with the original six residences.

ISSUES OF LAW

1. Is the Commission’s new compliance standard void for being vague, ambiguous and impossible to enforce?

Answer: No.

Relief Ordered: None. This Court concludes that a percentage compliance standard is not, in and of itself, vague, ambiguous, or impossible to enforce.

2. Did the Commission fail to give the Town appropriate deference to the Town’s interpretation of its own land use and development plan?

Answer: No.

Relief Ordered: None. The Commission’s action is affirmed.

ISSUES OF FACT

1. Did the Commission adopt the new compliance standard without substantial evidence in the record to support it?

Answer: Yes.

Relief Ordered: Pursuant to Wis. Stat. § 227.57(2) & (6), the action of the Commission adopting a 95% compliance standard is set aside and the matter remanded to the Commission for the purpose conducting a further hearing on the issue of adopting a percentage compliance standard.

2. Did the Commission adopt the staff’s selection and Highland’s proposal on the six sensitive residences without substantial evidence on the record?

Answer: Yes.

Relief Ordered: Pursuant to Wis. Stat. § 227.57(2) & (6), the proceeding is remanded to the Commission with direction that the Commission to state on the record why, if it can, based on the record already accumulated, the six residences were selected and the other eleven were not. If, based upon the record herein, the Commission not able to state why the six residences were selected and the other eleven were not, then matter is reopened solely for the purpose of allowing the parties to state why other is the sensitive residences, already identified, should be considered and the Commission can then decide if others, already identified, should be included with the original six residences.

3. Did the Commission’s decision that the curtailment plan “ensured compliance” with applicable noise limits lack sufficient basis in substantial evidence?

Answer: No.

Relief Ordered: None. The Commission’s action is affirmed.

XIII. DECISION AND ORDER

For the reasons set forth herein, IT IS HEREBY ORDERED that this matter is remanded to the Public Service Commission for action consistent with the Decisions herein.