The Register-Herald, Beckley, West Virginia

Local News

April 18, 2007

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.

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