FINCASTLE – A lawsuit that seeks to undo a state environmental permit granted to a proposed wind farm in Botetourt County survived its first legal challenge Friday.
Attorneys for the Virginia Department of Environmental Quality and Apex Clean Energy asked a judge to dismiss the case, in part because opponents of the wind turbines live too far away to have legal standing to bring the case.
Although Botetourt County Circuit Judge Joel Branscom said he had “serious concerns” about standing, he allowed the case to move forward.
The lawsuit, filed last December by Virginians for Responsible Energy and 14 residents of Botetourt and Rockbridge counties, asserts that the DEQ permit should be vacated because the agency cut corners in a process that ignored the adverse impacts of building turbines more than 600 feet tall along a remote county ridgeline.
Friday’s hearing did not address the merits of the case, instead focusing on several defenses raised by DEQ and Apex on procedural grounds.
Robert Loftin, a Richmond attorney who represents the clean energy company, told Branscom that the closest home of any of the petitioners was nearly two miles away from where the wind farm will stand on North Mountain. Some opponents live as far as 20 miles away.
“There is no one within miles of this project,” Loftin said.
To achieve standing in the case, the opponents must show that they own or occupy property within a close proximity of the wind farm, and that it would cause them “particularized” harm not felt by the larger public.
On the issue of proximity, the longest distance recognized by the Virginia Supreme Court between an alleged harm and an affected plaintiff is 2,000 feet, Loftin said.
But there have been no cases involving windmills that will be about twice the height of the Wells Fargo tower in downtown Roanoke. If completed, the Rocky Forge Wind project will be the first onshore wind farm in Virginia.
Evan Mayo, who represents the landowners, said that each one would be affected in different ways and to varying degrees.
Among the concerns: The wind farm would devalue nearby properties, spoil scenic views, create low-frequency noise that can lead to health problems, diminish wildlife and contaminate streams with sediment dislodged by the clearing of the mountain ridge.
An amended permit approved by DEQ, which allowed for fewer turbines but at a greater height that initially planned, will increase the rotor-swept area by nearly 40 percent, Mayo said.
After listening to two hours of arguments, Branscom said he was tempted to rule in favor of the wind farm on the issue of standing. But in allowing the case to move forward, he said he needed more information before making a decision.
The lawsuit is not the only hurdle for Apex, which has encountered numerous setbacks and delays since first proposing the wind farm in 2016. Most recently, the coronavirus pandemic caused a backlog in supplies needed for the wind farm and slowed its planning.
Botetourt County’s zoning administrator determined last month that the Charlottesville company was not eligible for a statewide extension of zoning deadlines for construction affected by COVID-19.
Because Apex missed a May 26 deadline for a site plan to be approved by the county, a special exception permit granted by the board of supervisors last year had expired, the zoning administrator decided.
Apex has appealed that decision to the county Board of Zoning Appeals.
While the number and height of the turbines has changed over the years, Apex’s latest plan calls for 14 turbines that will be 612 feet tall. The wind farm will be built on a nearly 8,000-acre rural tract about five miles northeast of Eagle Rock.
In their lawsuit, opponents argue that DEQ failed to address the risk that the turbines’ spinning blades – each one nearly as long as a football field – will pose to golden eagles that have been spotted soaring above North Mountain.
That and other shortcomings “make a powerful case that a well-funded energy company leaned on a state agency to push an error-filled, out of date, and fundamentally incomplete application through an unrefined DEQ fast-track process,” the lawsuit states.
DEQ did find, however, that the wind farm would pose a risk to bats. There is a requirement that Apex turn the turbines off from dusk to dawn during the warmer months, when bats foraging for food are most likely to collide with turning windmill blades.
New laws in Virginia call for an accelerated transition from fossil fuels to renewable forms of energy, such as solar and wind.
But previous onshore wind farms proposed by other companies have failed to get off the ground in the region, and Apex’s uphill climb grew no easier on Friday.
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