Published: April 18, 2007 11:31 pm         

Justices to decide windfarm argument

A hearing date has not been established

CHARLESTON — In a stunning reversal of fortune for anti-windfarm advocates, the state Supreme Court of Appeals on Wednesday unanimously agreed to hear two cases claiming the West Virginia Public Service Commission erred last fall in their decision to give the green light for building 124 electric-producing wind turbines in northern Greenbrier County.

The decisions by Chief Justice Robin Davis, and Justices Larry V. Starcher, Elliott E. "Spike" Maynard, Joseph P. Albright, and Brent D. Benjamin were released late Wednesday by court information services director Jennifer Bundy.

Mountain Communities For Responsible Energy (MCRE), along with Jeffrey and Alicia Eisenbeiss, filed the petitions asking the high court to hear why they disagree with the PSC ruling. The Eisenbeiss’ filed “pro se” — without the aid of a lawyer.

Although no reasons were given for their decisions — which is normal during this first phase in front of the court — many of the questions asked by the justices centered around whether the PSC had the authority to conditionally grant the wind turbine building permit upon the subsequent approval of outside agencies.

This led Justice Benjamin to comment that it appeared the PSC was “punting” its responsibilities prescribed by the Legislature to departments such as the state Historical and Preservation Office (SHIPO). The PSC ruled last fall that before construction may begin SHIPO must first sign off on the project. That’s just one of about 60 conditions the PSC mandated must be met prior to construction.

This finding of fact led MCRE lawyer Justin R. St. Clair to argue the PSC was outsourcing important public policy decisions to an outside agency when they should have been made by the PSC.

“ ... because of the Commission’s deferment of cultural history and cultural resources to the West Virginia state Historic and Preservation office, the Commission essentially ignored their own rules,” St. Clair argued before four of the justices. Justice Starcher, recovering from an eye surgery, watched the proceedings from his home via a simultaneous Internet Webcast.

St. Clair said the project’s five-mile radius map, provided by windfarm developer Beech Ridge Energy to the PSC, failed to include some churches, homes and sites of historical significance such as civil war battlefields.

“There was a lot of stuff left off of it,” St. Clair said. “It’s obvious that impacts of cultural, historical and archeological resources were not considered by the commission.”

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Justice Maynard then made a statement that opponents of the $300 million windfarm have decried for the last two years. The sight of 400-feet tall wind turbines will spoil the scenic view of Greenbrier County.

“It seems to me that that one of the factors that the law should require the PSC to consider is the impact on mountain aesthetics, you know its one of the most beautiful parts of the state,” Maynard said. “When I go down there, sometimes I think about how I can imagine troop movements in the Civil War ... I wonder what they (soldiers) would think if they rode up there and saw windmills on the ridgetops? How in the world would you ever justify interfering with the viewshed?”

Beech Ridge’s plan calls for 124-turbines to be placed on 23 miles of ridgeways owned primarily by MeadWestvaco. Some of the mountains have been heavily forested and strip mined for coal.

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Justice Benjamin at one point asked Beech Ridge lawyer Lee Feinberg if the PSC’s “conditions” ruling amounted to something “illegal.”

“Is the PSC improperly giving (authority) to another state agency; one that doesn’t have the policy decision for the overall discretion of whether this project goes forward or not; and is that therefore illegal?”

“I don’t think so,” Feinberg replied.

But Justice Albright’s summary of the PSC’s decision seemed to suggest that decisions made by outside agencies did not pass the smell test.

“What troubles me is that all of this material (from the outside agency) is in front of the PSC and the litigants who were opposing your application took no part in all of that and had no say,” Justice Albright said. “Then the Commission is put in a position to rely on the expertise of these governmental agencies and its a closed question. The only issue is did the right officer sign the report?”

“It appears to me that the PSC is overstepping it’s authority to delegate ...” Justice Maynard said.

“Or maybe the better word is punting,” Justice Benjamin immediately said.

A hearing date in the matter has not been set.

— E-mail:

cgiggenbach@register-herald.com