A dispute over North Dakota’s new law requiring light mitigation technology on wind turbines played out before state regulators Thursday as they consider an application for a wind farm in Ward and McLean counties.
At a hearing, attorneys for the North Dakota Public Service Commission said regardless of whether the commissioners approve Southern Power’s Ruso wind farm, their decision might be challenged in court by a landowner or the project developer.
The dispute stems around a 2017 law requiring the technology so that the red lights on top of wind turbines don’t blink all night long and ruin the dark sky for residents nearby. The lights are in place to notify aircraft of the presence of the turbines.
The only mitigation technology authorized so far by the Federal Aviation Administration uses radar to keep the lights from blinking except for when an aircraft flies in their vicinity. The FAA, however, will not allow such a system at the proposed Ruso wind farm because of concerns raised by the Minot Air Force Base.
The military flies helicopters in the area where intercontinental ballistic missiles are stored underground. Lights that blink only in the presence of an aircraft, for example, could alert a potential enemy to the location of a helicopter, according to the Air Force Base.
At issue is whether there’s leeway within the law to allow for a wind farm without the light mitigating technology.
“It pains me to be taking a position that would potentially allow a company to develop a new project without it, but I am also, more than anything else, a believer of fair regulatory approaches,” said Commissioner Julie Fedorchak, who was among the first in the state to advocate for light mitigating technology.
She suggested that the PSC issue a permit for the project with the condition that Southern Power install an alternative light mitigating technology as soon as one is approved by the FAA. She indicated she would like the company to provide regular updates on the availability of the equipment. One option under development is a system that dims the blinking lights, depending on visibility conditions.
Southern Power suggested that condition in a memo submitted to the PSC before Thursday’s hearing.
Brian Johnson, an attorney serving as advocacy staff for the PSC, argued that there is little leeway under the law. He pointed to language that wind farms “must be equipped” with a light mitigation system.
“It’s another hurdle they have to clear in order to get their certificate to move forward,” he said. “I don’t see it as any different than any other rules or regulations that we go down our checklist and follow along to make sure that we’re properly siting a project.”
But Mollie Smith, an attorney representing the project developer, presented a different interpretation, arguing that the law is ambiguous. The law requires that the technology be implemented consistent with FAA regulations, she said, adding that a conflict arises because the FAA has determined that Ruso Wind needs standard lighting, the kind that blinks all night long.
She said the law does not say that the PSC should deny a permit if light mitigation technology is not installed. She told the PSC that if it were interpreted that way, “you are basically throwing out the Siting Act and elevating this” issue, making lighting technology the determining factor in whether a wind farm receives a permit. The Siting Act refers to a portion of state law that spells out numerous requirements a project must meet to receive approval from the PSC.
“This is the last issue that has come up,” Smith said. “This project has met all of the other requirements.”
Commission Chairman Brian Kroshus said “a unique set of circumstances” surround the project. He anticipates the Legislature might take up the lighting matter again when it meets in early 2021.
The PSC did not vote on a permit for the proposed wind farm at Thursday’s hearing. In addition to the dispute over the light mitigating technology, commissioners are also weighing a request from a union to require that Ruso Wind report the number of local and nonlocal workers involved in construction of the wind farm.
The facility is slated to contain 47 turbines for a total capacity of 205 megawatts.
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