Court hears wind farm arguments; Focus on state energy siting law

The state Supreme Court on Thursday will hear arguments on whether state government can override a Kittitas County land-use decision that denied approval of the 65-turbine Kittitas Valley Wind Power Project proposed for 12 miles northwest of Ellensburg.

A deputy prosecutor representing Kittitas County government and an attorney representing a citizen advocacy group along with valley resident Steve Lathrop will argue that Gov. Chris Gregoire and the state Energy Facility Site Evaluation Council, or EFSEC, improperly used a flawed and unconstitutional law to approve the $200 million wind farm in September 2007, thus overturning Kittitas County government's rejection of the project in 2006.

An assistant Attorney General representing the governor and EFSEC and lawyers representing wind farm applicant Horizon Wind Energy will argue the EFSEC law is constitutional and that EFSEC, the governor and Horizon followed the law, and the wind farm should be developed based on the facts in the case.

"In its simplest terms, it's about who should make the land-use decisions for Kittitas County residents," said James Carmody, lawyer for the citizen wind farm opposition group Residents Opposed to Kittitas Turbines. "Is it county elected representatives or a group of unelected bureaucrats? We say local government should make that final decision."

Assistant Attorney General Kyle Crews said there are debatable issues raised by the county about the EFSEC statute, "but the actions of the governor, the applicant and EFSEC were all done lawfully."

Arguments

Some of the major argument points, according to attorneys for the county, ROKT and Lathrop, were related as the following:

The county, ROKT and Lathrop contend the 1970 EFSEC law violates the state constitution in allowing an administrative land-use decision by the state to be directly appealed to the state Supreme Court.

They also argue the pre-emption authority (to overrule a county government decision) in the 1970 law was exercised incorrectly by the state in approving the Kittitas Valley wind farm.

County Prosecutor Greg Zempel said Deputy Prosecutor Neil Caulkins will tell the Supreme Court there is a real question as to whether the Legislature gave overruling authority to EFSEC in relation to wind power projects.

The EFSEC decision process showed evidence of bias, conflict of interest and lack of appearance of fairness.

Some of state government major argument points, according to attorneys:

The EFSEC law is constitutional and the Legislature clearly gave EFSEC and the governor lawful authority to override a county government decision when it relates to the wider interests of the state in connection with power generation.

The county and interveners in their challenge had a lower court review of their concerns in Thurston County Superior Court which dismissed conflict of interest issues when it certified the record going to the Supreme Court.