Wind permit approved By Anne Adams Staff Writer
MONTEREY Three years of debate. Months of research. Strong opposition. Lawsuits promised. An eight-hour public hearing. Final board approval. Now what?
 | | Lola and Mac McBride won approval from Highland's board of supervisors for a conditional use permit to construct and operate a 39-megawatt wind utility on their 4,000-acre property atop Allegheny Mountain. (Recorder photo by James Jacenich) |
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Nearly a year since it requested one, Highland New Wind Development now holds the conditional use permit it needs to forge ahead with plans to erect as many as 22, 400-foot turbines on what many call one of the last of the most pristine, mountain ridge tops on the East Coast and the first wind energy utility in the state of Virginia.
After the vote last Thursday night (see related story), HNWD attorney John Flora said the limited liability company plans to apply immediately for a certificate from Virginias State Corporation Commission. SCC officials say HNWDs application will be treated like any other proposed small utility.
 | | Blue Grass resident Deborah Ellington was one of many who shed tears as the board voted to grant the permit; her son, Sam, hugged her neck sandwiched between his mother and his father, Ske. (Recorder photo by Will O'Connor) |
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SCC must grant a certificate of public necessity and convenience in order for HNWD to get a building permit, but how that all pans out in the face of current and expected lawsuits is likely to get complicated.
The SCC is the states governing agency that oversees applications for any proposed utility in Virginia. Its process can be time-consuming, depending on the size and scope of a project. HNWDs plant, at 39 megawatts, will undergo the agencys streamlined process, according to SCC spokesman Ken Schrad. Though he could not be specific without an application in hand, Schrad told The Recorder this week he expects a series of reviews by a number of state agencies before a certificate could be issued. Just because this could be the states first wind generation plant, the SCC will review HNWDs application exactly the same way it would any other small facility.
It doesnt make any difference, Schrad said. Each particular application has its own unique circumstances, and the criteria for granting a certificate are the same … I dont think the commissions criteria change (just because its Virginias first such project) but there may be a different set of questions asked by the DEQ.
When HNWD applies, the application will be made available publicly within 48 hours, Schrad says. As of press time this week, no application had been submitted, though HNWD is expected to file very soon.
Schrad explains the application will first be reviewed by SCC staff for completeness, and a schedule order of procedure will be posted.
Virginias Department of Environmental Quality will coordinate efforts among most other state and federal agencies to review impacts on everything from historically significant sites affected, to erosion and sediment control. It is likely to be charged with any environmental assessments, though they will not likely be as extensive as they would under the National Environmental Policy Act. Schrad says DEQ will send memos to a variety of agencies requesting they comment on the application, and DEQ will seek advice from as many agencies as possible.
Along the way, there might be a public hearing, but thats not a given, Schrad says. For utilities this size (under 50 megawatts), he says the agency is apt to issue a notice and ask for hearing requests. If the agency determines there are clear reasons a hearing needs to be held, one will be scheduled.
The SCC also accepts expert witness testimony the SCC calls respondents, similar to intervenors in West Virginias process. These are people prepared to provide evidence and legal testimony concerning the application which may be used in a court of law. Under this process, the application can be appealed as far as the state supreme court.
In addition, any citizen can submit written comments, whether or not a public hearing is held.
The SCC must consider a limited number of factors in its decision on whether to grant HNWD a certificate to operate. Those include, basically, whether the project would harm other utilities providing electric power, how it might change the competitive playing field among state electric companies. Thats all I know of except the broad standard of public interest issue, he said. I cant tell you what that means.
The public interest criteria is developed by case law and involves consideration of the overall public interest of Virginia citizens when considering an application, Schrad said.
In the meantime, another lawsuit is expected to be filed in addition to two others already pending.
David Bailey, attorney for Lucile Miller, the Goodall family, and county landowners, filed a request for a declaratory judgment May 16 on the countys decision to alter its height requirement, a move that paved the way to accommodate HNWDs project. That suit awaits a move from one side or the other to push it forward, unless the local judge requires it to move ahead sooner.
Bailey expects to file a second suit within 30 days that alleges the vote to approve the permit was illegal, but declined to give away his strategy by explaining the basis of that suit.
In addition, attorney James Jennings with Woods Rogers in Roanoke, notified the county prior to its vote that should the permit be approved, his clients will forge ahead with a suit filed under the Endangered Species Act requirements.
Bailey says though the cases will not be combined (his will be heard in state courts; Jennings will be heard in federal courts), we are working together on all of the cases.
One thing Bailey says the county did right was place as a condition on HNWDs permit that it cannot obtain a building permit for construction until all other agency requirements are met. Not all boards of supervisors do that, he said. Thats one thing they did that had some reason to it. Due to that condition, his clients dont have to worry that construction on the project will begin right away, thereby forcing them to seek a court injunction.
Schrad says any litigation regarding the permit issued by the county will be separate and distinct from the SCC process. If something is pending on a local permit, that doesnt hold up the process here, he said. However, in other power plant cases with which hes familiar, Schrad says the SCC has determined that as a condition of issuing a certificate, all other local and environmental permits must be obtained.
But unless a court rules the county permit invalid, as far as the SCC is concerned, the company has its local permit.
Baileys ready to move ahead. I cant wait, he said. Its terrible what theyre doing to those ridge lines. He pointed to a press release issued by Bracewell and Giuliani, a large industry law firm, after the vote. If anyone ever had any doubt this was just going to be a local process, theyre pipe-dreaming by now.
The firms news release written by media specialist Frank Maisano quoted McBride saying, Renewable power from wind is creating a great opportunity for Highland County and all of Virginia. The economic benefits and revenue from ths project will provide funding for essential projects for all county residents long into the future. I am proud that McBride family land will provide revenue for Highland Countys economic benefit while also reducing global warming for our environment. Further, Maisanos articles states, There are also non-economic benefits that renewable wind power will bring to Virginia. As wind energy is expanded in western Virginia, it will supplant some power generated from coal and lead to less emissions.
Bailey says he believes the wind energy developers and lobbyists are backing HNWD. The industrys paying for this, he said. And the first shock the board of supervisors is going to have is that the transmission line will be immediately upgraded. Thats my prediction.
The conditions the county placed on HNWDs permit, Bailey says, are absurd. It means you can do anything you want. Those conditions are very weak, extremely weak. And not only have they approved the windmills, they are giving away the countys view shed for a paltry amount … They could have gotten a lot more than that. (HNWDs) permit is extremely valuable. It opens the county to wind projects all over.
Bailey calls this project a loss leader, a term used by the retail market. A store puts an ad in the Sunday paper offering rock bottom prices … Thats a loss leader, because it gets you in the store, and once the doors are open, theyve got you. The board cant stop other projects (here) and they know it. Those conditions are so minimal anyone can meet them.
As for the federal case, Jennings says, If the board had voted no, there would be no point in going further. But now the board has voted yes and were going forward. He said several more plaintiffs have been added to the suit since the county was served with notice of intent, and he may revise that notice accordingly, thereby restarting the 60-day clock with the U.S. Department of the Interior.
Attorney Jesse Richardson, who specializes in agricultural land use issues, has been following the wind energy prospect in Highland County. Richardson will be remembered as one of two attorneys involved in the case against the countys action to rezone the McNulty tract along Route 84.
Richardson, as it happens, is preparing a seminar on wind energy as it pertains to the farming community, one he plans to present this fall at a meeting of the American Agricultural Law Association in Kansas.
He says both lawsuits have really interesting and novel issues involved and neither will be easy for the plaintiffs to win, particularly because the countys votes are considered legislative action. Whatever a local government does is presumed to be correct, and challengers have a pretty heavy burden of proof, he said. They have a tough case ahead of them.
As to the merits of the height case, Richardson says he can see the plaintiffs argument because a special use should be actually a use. The countys change in the ordinance made exceeding its height limit of 35 feet require a conditional use permit instead of a variance. Ive never seen it used that way before, Richardson said. Ive never seen special use permit used to regulate height.
Were the ordinance change overturned in court, however, Richardson says all the county would need to do is make wind utilities a conditional use. If the countys smart, its not going to matter, he said.
As for the pending suit filed under the Endangered Species Act, Richardson says the real question is whether the Department of Interior will intervene. I really have no idea whether it will, he said.
This is a very novel, unusual lawsuit, too, he added. I know what theyre doing in theory … If someone kills an endangered species, that clearly falls under the act. If they do something to alter the habitat of an endangered species and that does harm, thats another matter. But the U.S. Supreme Court has said yes, if you alter the habitat (resulting in harm to endangered species), thats a violation. He pointed to the spotted owl case out west, where even though no owl was touched, all the trees of its habitat being cut down was ruled to be a violation anyway. There is case law. I dont know of any cases involving windmills, and its the plaintiffs burden … Theyre going to need a lot of high-powered research and a lot of expensive experts. Its going to be expensive for them, and costly to the county to defend.
Richardson explained the separation of powers is set up such that courts should not interfere with legislative actions, and should not consider themselves environmental experts. On the other hand, he said, its smart to take this to federal courts because those judges dont litigate a lot of land use decisions. Theres a chance of getting a judge who wont (give as much weight) to the local governments actions.
He also said that a new board of supervisors might find reason enough not to renew HNWDs conditional use permit when it expires. The countys resolution states the permit expires in two years, but that for every day its tied up in legal processes, the permit is extended by a day. If a (new board) revoked the permit without good reason, though, they could be in trouble.
Richardson plans to use the Highland project in his presentation this fall, including how it might affect farmers under eminent domain authority. I recently participated in a walk across England, a coast to coast program, he said. And I ran into signs (opposing windmills) all over. Its the same everywhere, in England, in Kansas. They want no windmills.
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