FINCASTLE – Long delays for the state’s first onshore wind farm grew longer Friday, when a Botetourt County judge found that the Virginia Department of Environmental Quality made procedural errors in approving the project.
The decision by circuit court Judge Joel Branscom sends a modified permit for Rocky Forge Wind back to the state agency for more review – and complicates plans to have the giant turbines spinning by next year.
DEQ will likely have to hold another public comment period on the wind farm, which has undergone many revisions and postponements since it was first proposed in 2015 by a Charlottesville company, Apex Clean Energy.
Before ruling on the merits of the case, Branscom first had to decide whether about a dozen Botetourt and Rockbridge county residents live close enough to the proposed turbines atop North Mountain to challenge them in court.
Attorneys for Rocky Forge and DEQ had argued that the petitioners’ homes, which are from two to 23 miles away from the site, were too distant to establish standing under Virginia law.
In allowing the lawsuit to go forward, Branscom acknowledged that he was plowing new legal ground. But standing has not been considered in Virginia when it comes to turbines about twice the height of the Wells Fargo tower in downtown Roanoke.
“I think we’re getting into something that the courts haven’t weighed in on yet,” he said.
In past cases, the Virginia Supreme Court has established the legal standing of plaintiffs to be no more than 2,000 feet from the subject of their lawsuits. Rocky Forge asked Branscom to follow that precedent, rule the plaintiffs lacked standing, and dismiss their lawsuit.
Evan Mayo, a Charlottesville attorney who represents the petitioners, said there was no comparison between the turbines and the subjects of the previous lawsuits decided by the supreme court, which involved a gravel processing plant and a river port for municipal waste.
“No one would look at something 700 feet tall and say it only affects people living within 2,000 feet,” Mayo argued during a hearing Friday that lasted more than four hours.
Although one concept of Rocky Forge included about 20 turbines as high at 680 feet, the most recent variation calls for 13 turbines, each one 612 feet tall.
Once Branscom found that at least some of the petitioners had standing, he turned to the crux of their case, which accused DEQ of downplaying or ignoring problems posed by the turbines.
Opponents say the ridgetop wind farm will be an eyesore to a scenic part of Southwest Virginia, cause harmful low-frequency noise, devalue nearby homes and endanger wildlife and other natural resources.
But DEQ granted a permit for the wind farm in 2017, subject to conditions that included turning the turbines off at night during the warmer months to protect bats who might fly into the massive blades while feeding.
Construction never started, though, as Apex searched for a buyer of the electricity that would be generated by the wind farm.
In late 2019, Dominion Energy agreed to purchase the power and then sell it to Virginia to help the state meet its renewable energy goals. By then, improvements in technology made it possible to build fewer turbines, but at a greater height.
Apex applied for a modified permit to allow taller turbines. And that is when DEQ ran into legal trouble.
Under a streamlined permitting process for renewable energy projects in Virginia, applicants must submit documents and studies to the state to satisfy more than a dozen requirements.
DEQ required new information only on what would be impacted by the higher turbines. Other requirements – such as studies that demonstrated the wind farm’s ability to connect to the electric grid – were not repeated because those circumstances had not changed, DEQ said.
However, interested parties were not allowed to weigh in on DEQ’s decision during a public comment period. “That was the source of great frustration for us,” said Molly Petty of Rockbridge County, the lead plaintiff in the case.
Bransom’s decision did not invalidate the modified permit as opponents had asked. Rather, it sends the matter back to DEQ for further review.
Apex spokesman Patrick Chilton said the company will be contacting the agency soon to reach a “mutual understanding” of what the ruling means for its plans.
“We will also look for additional clarification in the judge’s written order,” Chilton wrote in an email. “We hope for a speedy resolution to this process.”
When plans were first announced to build the project on a nearly 7,000-acre tract in an isolated area about five miles northeast of Eagle Rock, it was expected to be the first onshore wind farm in Virginia.
In addition to lawsuits by opponents, Apex has also run into issues finding a commercial partner. A power purchase agreement with Dominion expired at the end of last year and was not renewed. Apex says it expects to find a new buyer shortly.
Assistant Attorney General Jerald Hess, who represented DEQ, contested the lawsuit’s allegations that the agency overlooked its regulatory requirements to benefit a large corporation.
DEQ went “above and beyond” what was required, Hess said, citing as one example a decision to require additional study on the turbine’s impact to golden eagles, which have been seen soaring above North Mountain.
Mayo countered that shortcomings in the state permitting process would only encourage other wind developers to take advantage of regulators doing just part of their jobs.
“Half the job isn’t good enough when it comes to environmental stewardship,” he said.
However, Branscom found the only errors were procedural, ruling that the permit be remanded – not outright invalidated.
“Ultimately,” the judge said, “I don’t feel like anybody is doing something wrong.”
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