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Iowa Supreme Court affirms district court rulings in wind energy cases  

Credit:  By Anesa McGregor | Emmetsburg News | May 7, 2019 | emmetsburgnews.com ~~

The Iowa Supreme Court affirmed a lower courts rulings on two companion cases surrounding wind energy, giving a victory to wind energy in Iowa and removing obstacles on a wind energy project in Palo Alto County.

Landowners in Palo Alto County have been challenging a large 170 turbine wind project as well as the validity of the wind energy ordinance adopted by the Palo Alto County Board of Supervisors and the approval of Palo Alto Wind Energy ProProject’s application by the Board of Supervisors.

The Plaintiffs disagreement with rulings from District Court Judge the Honorable Nancy L. Whittenburg and the Iowa Utility Board led filing of an appeal with the Iowa Supreme Court.

The Plaintiffs (Bertha Mathis, Stephen Mathis, Tillford Egland, Thomas Stillman, Lois Stillman, Michael Reding, and Suzanne Reding) vs. Palo Alto County Board of Supervisors (Craig Merrill, Chairman; Roger Faulstick; Linus Solberg; Keith Wirtz and Ron Graettinger) argued: 1. the wind energy ordinance adopted by the Palo Alto County Board of Supervisors was not written by the Board itself; therefore, the Board was arbitrary and capricious when approving the wind energy project. The Plaintiffs argued, it was Invenergy and MidAmerican Energy allegedly wrote the wind energy ordinance.

The Court was not persuaded finding that Palo Alto County Attorney Peter Hart primarily drafted the wind energy ordinance for the County and that although Invenergy and MidAmerican Energy may have strongly suggested changes, the Board only accepted some of them and rejected the rest.

“Based on our (the Court) review of the summary judgment record, we find no basis for setting aside the Ordinance as approved by the county’s elected legislative body. We hold that the district court did not err in granting summary judgment in favor of the defendants on the plaintiffs claim that the Ordinance was void and unenforceable,” Court documents show (Case No. 18-1431, pg. 9).

The Board’s approval of the wind energy project violated the terms of the Ordinance stating PAWE and Invenergy were not the “Owner/Developer” of the project; therefore, approval by the Board violated the terms of the Ordinance and was arbitrary and capricious.

The Court read the Ordinance in its entirety and ruled, “members of the Board (Supervisors) were aware MidAmerican could (and even likely would) take over ownership and operation of the project. We agree there was no violation of the ordinance.

We also find no merit in plaintiffs’ argument that “due diligence to ensure that the proper entity is submitting the permit application” means MidAmerican must be the applicant so as to “be obligated to the county to be responsible for the requirements of the permit,” Court documents state (Case No. 18-1431, pg. 11).

According to the county ordinance, any potential buyer of the project would take over the permit as the assignee and all requirements of the ordinance as written.

The plaintiffs next contended the Board acted illegally, arbitrarily, and capriciously in disregarding a submission from an acoustical expert.

The Court stated “we are not persuaded that the Board acted illegally, arbitrarily, or capriciously. According to the Ordinance, the fifty-decibel maximum only applied “under normal operating conditions.”

The Ordinance imposes a maximum decibel allowed and if they are not in compliance, there are consequences.

The plaintiffs also questioned the decommissioning cost per wind turbine claiming that it would cost a great deal more than the $33,480 per turbine to remove a turbine and restore the ground cover.

The Supreme Court stated that under a separate decommissioning agreement, PAWE and Invenergy agreed to updating the decommissioning agreement annually and increasing the decommissioning amount if it is determined cost has risen above the initial $33,480.

The decommissioning agreement stays with the project, therefore; anyone purchasing the project must honor the agreement as originally entered into.

Deliberation on the case took one month from the day the oral arguments were given to the Iowa Supreme Court on Tuesday, April 2.

The Courts conclusion in this case: “We affirm the judgement of the district court.”

Although admittedly wind farms are not without problems, the weighing of those drawbacks against any benefits was entrusted to the five elected representatives of residents in Palo Alto County serving on the Palo Alto County Board of Supervisors.

“We are pleased that the Iowa Supreme Court affirmed the judgement of the District Court and ruled that the wind energy ordinance that we constructed and put in place is valid, Supervisor Chairman Craig Merrill stated. “It was our responsibility to put in place an ordinance and it is up to the land owners to choose if they want to participate in this project .”

Palo Alto County Attorney commented,?”For my part, I am most gratified by the Supreme Court Justices’ balanced analysis of all points of view upholding the County’s Wind Ordinance. The Court was clear in affirming the Supervisor’s decision making process, which was assisted by the County Zoning Commission.

“I’m especially appreciative of Judge Nancy Whittenburg for her initial insights and through treatment of the issues. The

“The Supreme Court upholding the Board’s actions ratifies the Supervisors’ leadership and strengthens everyone’s local support for our schools, hospital, libraries, and all county services.

Rural residential owners rights under the Wind Ordinance keeps wind turbines 1,500 feet from a non-participating rural resident. Neighboring rural residents rights don’t prevent an adjacent neighbor’s choice to allow a wind turbine on their property.

Justice Mansfield said it best: “…wind farms are not without drawbacks. But..weighing..those drawbacks against any benefits was entrusted to the elected representatives of the Palo Alto County Board of Supervisors.”

“AFFIRMED.”

The companion case was Bertha Mathis and Stephen Mathis vs. Iowa Utilities Board with Palo Alto Wind Energy LLC, MidAmerican Energy Company, and Palo Alto County Board of Supervisors as Interveners. The plaintiffs asked the Iowa Supreme court to review a longstanding Iowa Utilities Board legal standard determining when a series of wind turbines constitutes an “electric power generating plant or combination of plants at a single site” within the meaning of Iowa Code 476A.1(5) (2017).

The Court stated, “The statute itself does not provide an obvious answer. Each wind turbine on its own generates energy, but wind turbines are often combined into “wind farms” or “wind projects” dispersed over a wide geographic area.”

The Justices need to determine what the definition of a single site is.

In over 20 separate proceedings since 1997, the IUB has ruled that for wind energy purposes all turbines connect to a single gathering line as a single site or facility. Turbines are connected to separate gathering lines and are treated as different sites or facilities.

Under this definition, a large wind project may avoid the need for a certificate of public convenience, use, and necessity from the IUB since the minimum power output requirements are not met. However, the IUB has the authority to waive the requirement in some circumstances.

The plaintiffs challenged a large 170 turbine project with the potential to generate 340 kW of energy. They believe the IUB should have exercised jurisdiction over the project treating it as one facility.

Since the IUB did not exercise jurisdiction over the project, the County had primary oversight over the project.

The original petition filed with the IUB reaffirmed its longstanding definition of a facility as being measured by the nameplate generating capacity of the wind turbines .

A petition, filed in accordance with Iowa Code 17A.19 in the Iowa District Court for Palo Alto County, requested a judicial review.

The ruling by the district court affirmed the IUB’s declaratory order simply saying that the IUB’s interpretation of the meaning of “facility” under Iowa Code 476A.1(5) referring to the wind turbines connected to a common gathering line was within the granted authority made by the legislature and there was no substantial evidence found not to defer to the IUB’s original ruling, which led to the Iowa Supreme Court proceedings.

The Iowa Supreme Court affirmed the lower court’s decision stating,” As a court of generalist, not energy specialists, we are unable to say with confidence that the common gathering line standard is superior to all other tests for when a wind project should be deemed a single site or facility.

“What we can say is that compared to the standard advanced by the Mathises, it is more consistent with the he underlying statutory language and more in line with the legislature’s policy goals. further, it is supported by a longstanding IUB administrative interpretation, apparent legislative acquiescence in that interpretation, and the legislature’s endorsement of a similar standard in a different wind energy statute.” (Case No. 18-1184, pg.18).

Geoff Greenwood, Public Relations Director for MidAmerican Energy had this to say regarding the ruling, “We think the rulings speak for themselves and we’re pleased with the decisions.”

Bertha Mathis, a plaintiff in the two cases had this to say when contacted, “It is a sad day for Iowa and Palo Alto County. The Supreme Court gave our residential rights away to monopoly power, MidAmerican energy.

“Wind turbines can continue to march across Iowa without regard to any regulation or human kindness. The choice was given to all of us by Jesus, “serve God or mammon.”

Iowa has chosen to serve mammon.

Source:  By Anesa McGregor | Emmetsburg News | May 7, 2019 | emmetsburgnews.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments to query/wind-watch.org.

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