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Town of Forest Petition for Judicial Review: Highland Wind Farm

Town officials in St. Croix county are suing Wisconsin's Public Service Commission after the regulator reversed itself and approved the Highland Wind Farm last year. Emerging Energies is seeking to erect 44 wind turbines, each standing up to 500-feet tall, in the Town of Forest. In February 2013, Wisconsin's Public Service Commission denied a permit for the project due to noise concerns, but Emerging Energies officials urged the commission to reopen the case, citing new technology that permitted the project owner to control the turbine speeds at night. The PSC agreed and approved the permit shortly after.

Attorneys at the law firm Reynolds Oliveira LLC filed a petition with the Wisconsin Circuit Court requesting that the PSC's decision be reviewed. The full petition as filed with the court can be downloaded in its entirety by clicking the links on this page. The Petition is in one file and accompanying Exhibits are in the second file. A portion of the petition is provided below showing some of the Grounds for Reversal articulated by the Town of Forest.

The exhibits included with the petition are as follows:

  • Exhibit A: Order Denying Motions for Reconsideration and Rehearing (December 20, 2013)
  • Exhibit B: Final Decision on Reopening (October 25, 2013)
  • Exhibit C: Order to Modify Second Prehearing Conference Memorandum (June 25, 2013)
  • Exhibit D: Second Prehearing Conference Memorandum (May 31, 2013)
  • Exhibit E: Order to Reopen (May 14, 2013)
  • Exhibit F: Final Decision (March 15, 2013)

GROUNDS FOR REVERSAL

I. The Commission Lacked Jurisdiction to Issue a CPCN for the Project

27. The Commission lacked jurisdiction to grant Highland's CPCN because the Project under curtailment, as approved by the Commission, would produce less than 100 megawatts - which is the minimum overall energy output a project must have in order to fall under the Commission's jurisdiction. Wis. Stat. 196.491(1)(g).

28. Highland's curtailment plan effectively placed the Project below the Commission's 100 megawatt jurisdictional threshold. See Town of Forest's Brief in Opposition to CPCN and Curtailment Plan, pp. 6-9. Highland admitted that, by curtailing the Project's turbines to reduce noise output, it would also reduce each turbine's power output. Tr. p. 1737. Based on the curtailment levels Highland proposed for each turbine, as well as the projections of power output loss Highland provided, the Town submitted evidence that the Project's overall output would have been reduced to approximately 92 megawatts - or approximately 8 megawatts below the Commission's jurisdiction. Town of Forest's Brief in Opposition to CPCN and Curtailment Plan, pp 8-9.

II. The Commission Deprived the Parties of their Right to Due Process and Made Material Errors of Law and Fact in Finding that the Project Only Needs to Comply with Noise Limits "95% of the Time."

29. In its final decision, the Commission determined that "a showing of compliance by Highland at or above 95% of the time is adequate for the Commission to consider the Project in compliance with applicable noise limits." Final Decision on Reopening, p. 35.

30. This finding is faulty in three ways: it was made without any due process to the parties; it is contrary and irreconcilable with the Commission's own conclusions of law; and it is unsupported by substantial evidence in the record.

A. The Commission deprived the parties of their due process rights by making this finding without giving the parties notice or an opportunity to present evidence or arguments on the issue.

31. Maximum noise limits attributable to wind projects are established by section PSC 128.14(3), Wisconsin Administrative Code. This section provides, in relevant part, that "an owner shall operate the wind energy system is that the noise attributable to the wind energy system does not exceed 50 dBA during the daytime hours and 45 dBA during the nighttime hours." Wis. Stae.128.14(3).

32. How compliance with the PSC 128 limits is determined was not at issue in the original proceeding. See generally Briefing Memorandum; Decision Matrix. There was nothing in the Commission's original briefing memorandum or decision matrix to suggest that the Commission would consider this issue in the decision. See. id.

33. In its original decision, the Commission merely referred to the testimony of a single expert, who had opined that he would consider a wind farm to be in compliance with noise limits if it did not exceed those limits "95% of the time." Final Decision, p. 18. The Commission noted that it might be "helpful" in future cases to evaluate "some sort of percentage-based standard." Id. at 18-19. But the Commission made no finding that a 95% compliance level would be sufficient for a CPCN, or that it would become the standard in this or future cases. See id.

34. When the Commission reopened the proceeding, it never identified the issue of what should be the standard for compliance with the noise limits under PSC 128. See generally Order to Reopen. To the contrary, the Commission made clear that the scope of the reopened proceeding was to be limited to the issues identified in the second prehearing conference - none of which referenced a compliance level or percentage-based standard. See Second Prehearing Conference Memorandum, p.1; Order to Modify Second Prehearing Conference Memorandum, p.1.

35. In fact, throughout the reopened proceeding, the Commission consistently prohibited the parties from introducing any evidence that did not address the very narrow questions presented for reopening. See, e.g., Order Denying Appeal of Evidentiary Ruling for Reopened Preceding, pp. 1-2. Consistent with the scope of the proceeding set by the Commission, neither parties nor staff introduced evidence or made arguments on a compliance level or percentage-based standard. Again, consistent with the scope of the proceeding, the staff's reopening Briefing Memorandum and Decision Matrix, which identified and informed the Commission of the issues in a proceeding, made no mention that a percentage-based standard or compliance showing was at issue. See generally Briefing Memo on Reopening; Decision Matrix or Reopening.

36. Yet, when the Commission made its final decision, it found that the Project could be built and operated should Highland show compliance with noise limits "95% of the time." Final Decision on Reopening, pp 35, 49. Without notice or an opportunity to present evidence and legal argument on this issue, the parties never had any input on an issue that goes to the very core of protecting public health: whether the Project will be too loud at any given time.

37. The Commission's failure to provide adequate notice of the compliance issue amounts to a procedural effort that deprived the parties of their due process rights and impaired the fairness of the proceeding.

B. The Commission's determination to impose a 95% compliance standard was contrary to its interpretation of law and its previous orders.

38. In its original decision, based on the recommendations of Wisconsin's Wind Siting Council, the Commission concluded that the applicable noise limits in PSC 128 were "absolute limits" - as opposed to average limits. Final Decision, p. 6; see also Wis. Stat. 196.378(4g)(e). In other words, the Commission found that, in order to receive a CPCN, a project could not exceed the 45 dBA limit at any time. See id.

39. However, the Commission's decision that the Project only had to comply with  noise limits "95% of the time" clearly allowed the Project to exceed the very noise limits the Commission had previously decided could not be exceeded. See id.

40. The Commission made no attempt to explain or reconcile its decision with its previous interpretation of the applicable noise limits. See generally Final Decision on Reopening. Nothing in the Commission's final decision, and nothing in the record, suggests a reason for the Commission to reverse its previous interpretation that these limits could not be exceeded. Nor does anything in the Commission's decision or in the record provide a basis for an exception to the notion of absolute maximums. Id.

41. Therefore, the Commission's determination to set a compliance standard of 95%, and therefore allow the Project to violate noise limits, is an error if law.

C. The Commission's determination is not based upon substantial evidence in the record.

42. The Commission made the "95% of the time" finding without substantial evidence in the record to support it. As previously noted, the Commission's decision rests on a single statement made by one witness during cross-examination in the original proceeding. See Final Decisions on Reopening, p. 6. Nothing else in the entire record addressed, directly or indirectly, the 95% compliance issue.

43. Without a record on this issue, the Commission did not and could not define what it meant by a standard of 95% of the time." See e.g. Final Decision on Reopening, pp. 35, 49. The Commission's undefined use of "time" leaves the Project free to be out of compliance in a wind range of circumstances. It could be read to mean the Project can operate any turbine at any noise level on any home for 5 out of every 100 minutes, hours, days, weeks, or months - consecutively or not. With such an undefined standard, the public is left to experience loud noise levels that can be harmful to their health for substantial periods of time - and the wind farm operator is left free to violate the law 5% of whatever time period it finds most beneficial to its interests.

44. Therefore, having no evidence to even define it, the Commission's determination setting a compliance standard of 95% lacks a basis in substantial evidence and is an error of fact.

III. The Commission's Determination that the Proposed Project Would not "Unreasonably Interfere" with The Comprehensive Plan is Contrary to Law and Lacks a Substantial Basis in Evidence.

45. In its final decision, the Commission made an erroneous conclusion of law in not giving appropriate deference to the Town's interpretation of its own land use and development plan. See Wis. Stat. 196.491(3)(d)(6), 227.49(3).

46. The Commission cannot grant a CPCN for a project unless the project "will not unreasonably interfere with the orderly land use and development plans for the area involved." Wis. Stat 196.491(3)(d)(6).

47. The Wisconsin Supreme Court has held that municipal governments are entitled to deference in their interpretation of their own land use laws. See Ottman v. Town of Primrose, 332 Wis. 2d 3, 14, 796 N.W.2d 411, 416 (2011); see also Marris v. City of Cedarburg, 176 Wis. 2d 14, 33 498 N.W.2d 842, 842 (1993). The Court noted that deference is owed to municipalities because "locally elected officials are especially attuned to local concerns. 332 Wis. 2d at 29, 796 N.W. 2d at 424.

48. But the Commission did not defer to the Town's interpretation of its own land use plan. See Final Decision on Reopening, p. 14. The Commission concluded that the Project would not "unreasonably interfere" with the Town's land use plan merely because the Town's land use plan "does not expressly limit support for renewable energy to small-scale development" and because wind projects are "typically placed in rural areas." Id.

49. The finding was wholly inconsistent with the evidence introduced by the Town. The Town's evidence made clear to the Commission that the Project would conflict with provisions in the Comprehensive Plan that limit industrial development - so as to preserve the Town's scenic qualities and rural character. See id. at p. 13.

50. Specifically, the Town informed the Commission that the Comprehensive Plan envisions "maintaining the rural character of the town; siting and designing large-scale businesses and developments to avoid conflicts with preserving the town's rural character and limiting development, such as the proposed project, to only the hamlet of Forest and along State Highway 64." The Town also informed the Commission that "although the Comprehensive Plan supports renewable energy development in the town, it should be read to mean small-scale renewable energy development, not development of the size and scope of the proposed project." See id.

51. The Commission's finding that the Town's Comprehensive Plan "does not expressly limit support for renewable energy to small-scale development" was not enough to support its conclusion that the Project would not "unreasonably interfere" with the plan. Much to the contrary, the fact that the Comprehensive Plan was silent on this specific issue was yet another reason for the Commission to defer to the Town's interpretation - rather that imposing its own inconsistent interpretation.

52. In sum, the Commission failed to give the Town the deference due under Wisconsin law, and reached a conclusion wholly inapposite to the evidence in the record. Even under the most deferential standard of review, the Commission's disregard of the Town's interpretation of its own land use plan was clearly inconsistent with section 196.491(3)(d)(6), Wisconsin statutes. See Ottman v. Town of Primrose, 332 Wis. 2d 3, 14, 796 N.W.2d 411, 416 (2011); see also Marris v. City of Cedarburg, 176 Wis. 2d 14, 33 498 N.W.2d 842, 842 (1993).

 

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140110 Petitionfor Judicial Review

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JAN 10 2014
http://www.windaction.org/posts/39631-town-of-forest-petition-for-judicial-review-highland-wind-farm
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