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Oral arguments in companion cases heard by Iowa Supreme Court

A special session of the Iowa Supreme Court was held on Tuesday, April 2, in Forest City. The oral arguments of two companion cases were heard.

Companion cases are cases that involve the same or similar parties, common material facts, and related questions of law. Resolution of these cases is a matter of broad public importance and has the potential to set a precedence for similar cases in the future.

“We have two cases that were submitted. They are consolidated for the purpose of this oral argument,” Chief Justice Mark Cady explained. “The first case is Bertha Mathis and Stephen Mathis v. Iowa Utilities Board, Palo Alto Wind Energy and the Palo Alto County Board of Supervisors. The companion case is Bertha Mathis and others v. Palo Alto County Board of Supervisors and Palo Alto Wind Energy.”

Wallace Taylor, Attorney for the Mathis’s began his oral arguments by explaining that the Mathis’s live on the shores of Five Island Lake.

Case 1 – Plaintiff

“After learning of a proposed wind energy project in their area,” Taylor began. “They felt that it would greatly impact the environmental amenities in the area.

‘They also learned that Iowa Utilities Board according to Iowa Code 476A, has the duty to issue certificates of public significance and necessity for energy generating projects.”

According to Taylor, it is the responsibility of the Iowa Utilities Board to make sure that a project complies with policies.

Taylor also pointed to the definition of a “facility” it had been define in the 1997 case of In Re: Zond.

“Who interprets Iowa Code 476A.15, the definition of facility?” Justice David Wiggins asked. “Do we leave it to the Utility Board or does this Court do it?

“If we leave it to the Utility Board we give them deference. I guess that’s the real question I have.”

“I think that the court makes that determination,” Taylor replied.

Taylor went on to explain that in the Iowa Code, a Board or Agency can make a determination on a statute if the legislation has given them the authority to do so.

“What impact if any does the waiver have on the way we should determine the statute?” Justice Edward Mansfield asked. “As a follow-up, what is the practical consequence to what you are asking us to do given that the agency (IUB) has the authority to waive the certification and give it to local authority, in this case the county supervisors.”

“In this case, if the agency determines that the public interest wouldn’t be affected, they can grant that waiver,” Taylor responded. “The problem the IUB has had is that Iowa Code 476A.15 which defines waiving the certification, also gives the definition of “facility” and this is one aspect the IUB has errored.”

“The relative language is “any electric power generating plant or a combination of plants at a single site…” now the IUB took the position that the succession of 170 wind over a large expanse, like 80 some miles, is not a single site,” Mansfield stated. “Doesn’t that sound like an fair of common sense meaning of the statute, even if we give no deference.”

“I don’t think so because the purpose of the statute is to authorize the IUB to examine the siting criteria for this project,” Taylor stated. “What the IUB has done in this case, is to effectively allow the wind energy project to invade the environmental review because they have taken a single gathering line as a site, when the impact is the entire project.

“In fact, when the development company went to the Palo Alto County Board of Supervisors with a site plan, the site was the entire project.

“I would like to ask you a question about the Zond case,” Justice Susan Christensen stated. “Are you asking us to find error with that case or are you distinguishing it?”

“The IUB has followed Zond since 1997 and legislation has never stepped in to overrule it,” Justice Thomas Waterman stated. “What weight should we give the apparent legislative acquiescence?”

“The situation I see is no one has challenged the Zond decision and so the legislature has no reason to think that there is a problem,” Taylor replied.

Taylor went on to discuss the Zond case being the first actual wind turbine case in the state and that until then no one had any reason to believe there was a problem.

“This is not about stopping wind energy,” Wallace clarified. “It’s about proper siting of this project and that is exactly what 476A is designed to do.”

A question was then posed of whether it is possible to have a single turbine, standing alone, can it function alone.as long as it is wired into the substation and goes into the transmission lines.” Wallace stated.

“So that makes it different than Reid, the waste disposal was a critical component of the site,” Justice Brent Appel noted. “The rationale was the disposal area was six or seven miles away, but it has to be part of the site.

“But here you can have a single stand-alone turbine, with one gathering line and if that can be a site, then don’t we have 170 sites,” Appel went on to say.”

“The real point is that the purpose of 476A is for proper siting of a turbine,” Wallace responded. “To have proper siting you have to look at the whole project to be sited properly to look at the impacts of the entire project.”

Hayley Van Loon, attorney for the IUB discussed the site plan a little by saying that the project is for 170 turbines and each turbine will generate 2 megawatts (Mg) of power.

Tracing the electricity, Van Loon stated each turbine is attached to a gathering line, which then goes to its own substation. She did note that she is not an expert in this field an was not exactly sure how the towers are hooked into the substation.

“If I may, I would like to touch on the subject of deference,” Van Loon stated. “Several of these questions have been technical in nature and this is an area where some type of expertise is very helpful. I can assure you that if you were to ask the IUB, they would be able to answer your questions.”

“That being the case, the IUB has recognized instances where is deferment to local control is best.”

Van Loon went on to say that the county has the ability to shutdown the plant is the rules laid out are not followed.

In his rebuttal, Taylor pointed out that the project is designed to include 170 turbines and produce 340 MW of electricity. Each turbine in the project is considered necessary.

“Zond has been the governing rule since 1997, why change it now?” Waterman asked.

“It was wrong to begin with,” Taylor replied.

Localities are regulating the site plans and the waiver by the IUB would have been based on certain criteria that the Supreme Court of Iowa will be looking at and come to a consensus hopefully within the next two months.

This is Part 1 of the Supreme Court story and contains the arguments of the first case. Look for Part 2 in the April 11, Democrat.