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Jack Mountain wind permit denied
Liberty Gap likely to appeal
BY ANNE ADAMS • STAFF WRITER
FRANKLIN, W.Va. - It's counted as a victory, but the celebration will be brief.
West Virginia's Public Service Commission has refused to grant a certificate for an industrial wind energy plant in Pendleton County.
"I'm not jumping up and down or anything yet," said Larry Thomas, an intervenor who has opposed the 125-megawatt project since it was first proposed three years ago.
Liberty Gap Wind LLC applied, twice, for a state permit to build and operate a wind generating electric utility atop Jack Mountain that would include 50 turbines, each on a 400-foot tower, in an array that would have abutted the Virginia state line in the Doe Hill area of Highland County.
The three PSC commissioners issued a 56-page report late Friday afternoon saying the application was lacking in several key areas.
The commission had been under a statutory deadline to issue its decision by June 22.
"It's hard to put this in perspective," said Robbie Sites, one of the Pendleton landowners initially opposed to the project. "It's not over."
Liberty Gap, a subsidiary of Delawarebased U.S. Wind Force LLC, has about 10 days to appeal the decision to the PSC and ask for reconsideration - a move opponents fully expect to come, Thomas said.
Sites, president and one of the driving forces behind the grass-roots "Friends of Beautiful Pendleton County," a group which acted as an official intervenor in the case, said while he counts the decision as a firm win, it's too soon to relax. But, he added, "Our attorney's position is that he'd much rather try to defend the PSC's decision than try to overturn it."
The PSC's report pointed to several siting and application requirements it felt Liberty Gap simply failed to provide, including a five-mile radius map depicting places from which the towers would be seen, the ramifications on cultural and historic landmarks, and potential harm to endangered species.
But the report, most opponents say, is not a fatal blow to Liberty Gap. The utility developer may be able to overcome those deficiencies in another application or a request for reconsideration.
Frank Maisano, of law firm Bracewell and Giuliani, serves as an industry spokesman for powerhouse energy companies, including U.S. Wind Force and Highland New Wind Development LLC in Virginia. He said he was asked to comment on the decision by Liberty Gap's vice president of project development, James Cookman.
Maisano said the company has three options at this point: Ask the PSC to reconsider; appeal the decision to the West Virginia Supreme Court; or re-file its application. "We're considering all our options, and still planning through to make that decision," he said.
He could not say which option the developer would choose, or whether there were deadlines attached under PSC guidelines. "We're just paying attention to the impacts of this on Pendleton County right now," he said.
FOBPC members nevertheless feel vindicated by the decision. "I like where we're at," Sites said this week. "The longer it goes, the more this is in our favor."
Sites said he was disturbed that the question put to the company about its plans to extend the project into Highland County, Va., went unanswered.
Research into the application Liberty Gap filed with the PJM regional electric grid indicates the transmission line proposed was intended to carry far more power than the 50 megawatts planned in Pendleton. "They didn't answer that," Sites said, "even after our witness brought it up."
Maisano said Wednesday that "right now, it's impossible to know" whether Liberty Gap's utility, if built, would be extended into Virginia. "We're certainly always looking for viable sites, but we're focused on the challenge at hand."
Sites says he expects Liberty Gap to "go backward" and resubmit a proper application. "The (PSC) had a checklist, and clearly Liberty Gap did not do it right ... They played games all the way through and tried to do less than the minimum required," he said.
Maisano said Liberty Gap is concerned for the county. "This is a huge economic loss for them," he said.
Since the project is not in place, Pendleton County has not lost any current revenue, but Maisano said he considers the decision "a huge blow" and says if the project were built, it was "going to be a lot of new tax revenue for the county, from our perspective."
Asked whether Liberty Gap might still consider its offer to help support a new water system in the project area, a proffer it made in the permitting process, Maisano said, "I don't know. We're continuing to work with the county and the county will be part of our decisions. We have always been willing to talk to everyone - commissioners, officials, opponents - everyone involved."
Maisano insisted the decision was a "real, huge, important loss" for Pendleton. "So many supporters went to Charleston and testified on (Liberty Gap's) behalf" at the evidentiary hearings, he said.
The record from those hearings indicates no citizens testified in support of the project, but Maisano said, "Well I don't know. All I know is there was a nice turnout of supporters who were there ... not just in Charleston but at other meetings in the county."
Larry Thomas disagrees with that assessment. "The company tried to say they had the support of most of the county," he said. "I'd guess they might have had the support of about 15 percent, but no more ... Not one single person drove to Charleston (for the hearings) and spoke in favor of this."
Maisano pointed to the National Academies of Science committee that visited West Virginia in its effort to research commercial wind energy, noting how many people turned out to support the industry.
The NAS issued a final report recently that concluded commercially generated wind power required far more environmental assessment and siting guidance in the U.S. "I think people will take what they want out of it," Maisano said. "But it's good information, a good compilation." However, Maisano said, the industry is changing so quickly, the report is "time-stamped, which is unfortunate."
While opponents wait to see how Liberty Gap responds to the decision, Sites says FOBPC members are feeling grateful to have been in good company as they spent thousands of dollars and endless hours fighting the proposal.
"We were fortunate to have people on our team that really cared deeply about this - Viola Riggleman, Larry Thomas, John Hargrove ... and Eve (Firor) who was very active. She was an organizer from the get-go. Larry and Kay (Thomas) invested 2-3 years of their lives ... And nobody had any pride of authorship on our team. We really worked well as a team, there was no personal agenda."
Riggleman, who was immersed in the group as a key organizer, said she knew from the beginning the cause was worth fighting for.
"(The project) just doesn't fit," she said, "and common sense prevailed. If you're going to fight for anything, fight for something you believe in and for the right reasons."
Riggleman, who works at the local funeral home in Franklin, was busy arranging flowers for a visitation planned on Friday when she asked her colleague to help her check the PSC Web site. "I don't even know how to get on the Internet," she said, "so I had called the library to get the Web site and he looked it up for me. I looked at it (the initial announcement denying the permit) and I just sat there and thought ... I kept seeing it, and kept thinking, 'Can this be what was issued today?'"
She called Kay Thomas who verified she was correct about what she read. "We realized yes, indeed, it was true ... There were several people I wanted to call and couldn't do it yet, so I stayed at work and then made some calls later," Riggleman said.
"I, for one, haven't been surprised. I felt all along that I was working for a good reason and as long was we presented the best evidence we could present, that's all we could do. We weren't making the decision. It was in their hands. But I knew we'd done a really good job putting evidence together, and the commissioners would see that. And they did. It's a lot to take in."
But cautious optimism for Riggleman, too, is the primary emotion. "It's probably not over, so there's no need to get too excited. This is not the last thing happening with this case ... We can only expect the commissioners will do their job. That's all we can hope for."
Riggleman felt the PSC's report issued a strong warning to other developers who might seek similar projects in West Virginia. "Whatever Liberty Gap's intention was in not filing everything, I hope the next developer doesn't think they're going to go forward without doing meeting the requirements," she said.
By Saturday, Riggleman said she had received two bouquets of fresh cut flowers from folks expressing their thanks for her efforts, but she was quick to note how many were involved in reaching this point. "There have been a lot of prayers going in on behalf of this whole process. (Highland) County, too, and even beyond. It was a good effort on the part of so many people."
Eve Firor agreed, saying she felt no doubt about getting involved in opposing the project.
"I really believe we had an excellent case, and some really good experts. There were so many who worked unbelievably hard on this. We had a lot of support in Highland County," she said.
"I'm expecting Liberty Gap will appeal this decision and ask for reconsideration."
Firor said she was out Friday when the decision was issued, but there was a message on her answering machine when she returned home. "I was just so relieved," she said. "I certainly had 3-4 days of real breathing time."
Sites said throughout the process, FOBPC felt a halfday behind the developer. Those involved had a steep learning curve, and the amount of research and legal advice they needed was so voluminous that not all of the group's testimony got entered into the record. Despite the PSC's opinion that the project's effect on water resources was not an issue, he feels the hydrology studies remain a strong argument. "That issue has good long legs if things move forward," he said.
In general, though, he continues to have deep concern for his friends and neighbors who would be affected by the project, and the behind-the-scenes series of events he says never fully got exposed.
"There is an impact beyond most of what you read in the media," Sites said. "There are scars. People lost sleep. This will last a long time in this county's minds and hearts. You hope and pray it's over ... this is the fight for our generation," he said.
Moreover, Sites said he strongly hopes those who were hoping for a large chunk of cash for allowing the proposed transmission line to cross their land haven't already spent the money they believed was coming.
No matter what ultimately is decided, Sites says FOBPC will continue to monitor such projects in the county, but also put its efforts into seeking other sources of revenue. "We're already pursuing 3-5 businesses to move into the area. We're going to shift our resources into positive things. We don't want to be known as a group that just says no to everything that comes along. And we'll hope to help change the political climate, urging candidates to run who are levelheaded and have common sense."
Sites recalled a caution he once got from his father. "My dad used to say, 'If you ever get involved with a group of people, stop and see who you're dealing with.' And when I stopped and looked at this group during the first couple of meetings, I saw good people. Generational families, farmers, people I respected all my life - with the caliber of these people, we're standing on good ground."
In a statement issued by FOBPC, Sites said members of the group "believe that our faith in the siting application process created by the PSC to ensure that ordinary citizens and all other stakeholders are heard has been justified ... Liberty Gap's attitude has been one of arrogance and disrespect for the PSC siting rules as well as for the residents and landowners of Pendleton County whom the proposed project would adversely affect."
The commission, he said, "could not fulfill its statutory obligation to appraise and balance the interests of the public, the general interests of the state and local economy and the interest of the applicant if parties to the proceedings are denied the ability to prepare their case because Liberty Gap did not provide information required by the commissions siting rules."
He said the group was grateful for the support it received from so many people who joined in opposing the project. "First, we credit our attorneys Justin St. Clair and James McNeely with their skillful and successful handling of our case," he said. "They repeatedly brought to the attention of the PSC, the failure of Liberty Gap to comply with the mandatory PSC siting regulations and unreasonable tactics throughout the entire application process. In addition, we credit the testimony filed by our expert and citizen witnesses and the overwhelming support of numerous residents and landowners of Pendleton County. Many countless hours and tens of thousands of dollars were invested to prove how the proposed project would adversely affect Pendleton County and the State of West Virginia. It was truly a monumental effort that proved that Pendleton County is by far the worst location in West Virginia for an industrial wind project.
"Friends are excited about this victory and hope this David and Goliath story will encourage other groups opposing wind turbines on the ridges of Appalachia."
But Larry Thomas isn't celebrating yet. "I'm still a little concerned about this whole process and what happens next," he said. "But we've learned a lot. I'm afraid the next group (of opponents) is going to have a far more difficult time. We've spent $85,000, and we know we can fight with good experts who could do more than we were able to pay for." For example, Thomas says, the group spent $24,000 for hydrology expertise and study. "It would cost $75,000 to do that right," he said. "It's not easy to raise a lot of money. In the beginning, I thought $25,000 would be all we'd need. If we could calculate how much the time and effort of the volunteers was worth, we'd have spent $300,000 or more I bet."
While he waits for Liberty Gap's next move, Thomas is going fishing with his six-year-old grandson.
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