Supremes consider wind power

Nedpower Mount Storm, Grant County

People who live near the planned Nedpower Mount Storm and Shell Energy wind farm in Grant County have sought to have it enjoined by having it declared a nuisance. The plaintiffs have previously lost in the Circuit Court of Grant County. In mid-April they argued an appeal of that decision to the West Virginia Supreme Court of Appeals.

Although most people would consider a "nuisance" to be mosquitoes, telemarketers, lawyers, or the like, in the eyes of the law a "nuisance" is a use of land that interferes with someone else's use and enjoyment of their land. It is what is called a common law cause of action. Historically it developed as conflicts arose over the use of land, judges resolved those conflicts, and a body of precedent grew up. Courts continually follow that precedent, adapting established principles to new situations as they arise. It developed at a time when there was no zoning and no regulatory agencies. The legal tool that landowners could use to prevent themselves from being overwhelmed by offensive and irritating land uses was nuisance law.

The plaintiffs in the Nedpower/Shell wind farm case now seek to apply those principles to wind farms. They contend that if the wind farm is allowed to go forward they will lose the ability to use and enjoy their property and that, as result, the value of their property will go down.

Nuisance law, as it has developed, is heavily influenced by the idea of "reasonableness." A property use which interferes with someone else's quiet enjoyment of their property may only be allowed if it is reasonable. The plaintiffs contend that the planned wind farm would not be a reasonable land use because it does not provide substantial power to West Virginia, only exists because of taxpayer subsidies, and is not a suitable alternative to coal and gas because wind is unpredictable.

Nedpower/Shell, on the other hand, says that we have been there, done that before the Public Service Commission. They contend that the Legislature gave the Public Service Commission authority to regulate where wind farms are located. By doing this, according to Nedpower/Shell, the Legislature effectively declared that disputes over the location of wind farms would be resolved before the Public Service Commission, not in Circuit Court. In the past, such disputes over the permissible use of land would have been decided in court by applying nuisance law. Now, according to the defendants, whether that particular use of land is permissible should be decided by the Public Service Commission.

The Circuit Court of Grant County agreed with Nedpower/Shell. It ruled that the question of land use should be decided before the Public Service Commission by applying its siting regulations. They should not be decided by the Circuit Court applying nuisance law.

Now the Plaintiffs have appealed that decision to the West Virginia Supreme Court. The case was argued in mid April, 2007. The Court gave no ideation when it might make its decision.

When the Court does decide, it will clarify the role of nuisance law in decision on the siting of wind farms. It may decide, as Nedpower/Shell contends, that the Public Service Commission is the exclusive forum for issues of land use that have been traditionally been decided by applying nuisance law. It may decide that Circuit Courts and nuisance law have a role.

The case incidentally illustrates why most people find lawyers to be nuisances. The plaintiffs are now well into their second year of litigation and all anybody has decided is where they should present their arguments about whether or not nearby land should be used for a wind farm. They have not yet gotten to present evidence and argue to the Circuit Court that the Nedpower/Shell project actually would be a nuisance. Two years into the litigation they are still arguing about where the dispute belongs.

Beech Ridge-Greenbrier County

The Mountain Communities for Responsible Energy and some individuals have appealed to the West Virginia Supreme Court a decision by the West Virginia Public Service Commission. The decision would allow Beech Ridge Energy to construct and operate a 186 megawatt wind turbine electric generating facility consisting of 124 wind turbines along 23 miles of mountain ridges in Greenbrier County, West Virginia, with a 13.8 mile 138 kv transmission line to be located in Greenbrier and Nicholas Counties, West Virginia. .Each turbine will be mounted on a 262-f00t tubular steel tower and will consist of three, 127-foot blades and will produce up to 1.5 megawatts of electricity.

According to the West Virginia Code, the Public Service Commission is supposed to "appraise and balance the interests of the public, the general interests of the state and local economy, and the interests of the applicant." The Public Service Commission applied this standard and concluded that the siting of the Beech Ridge project was proper.

In appealing to the West Virginia Supreme Court, the residents make two arguments. First, they say that the application is incomplete. In order to "balance the interests of the public", the Public Service Commission about whatever people, churches, cemeteries, streams, etc. are located around the proposed site. It gets this information from, among other places, maps of the area which the applicant is supposed to submit.

In this case, the citizens contend that Beech Ridge Energy did not submit accurate and complete maps. Neither did it make all the relevant information part of its application. As a result, the Public Service Commission could not possibly have properly evaluated the interests of the public. They contend that the application should have been dismissed and not considered until it was complete.

Second, the citizens contend that the Public Service Commission improperly made its approval of the siting conditional. When it issued the siting certificate, the Public Service Commission conditioned it upon Beech Ridge file any necessary environmental permits or certifications and any letters from the West Virginia Division of History and Culture or the West Virginia State Historic Preservation Office indicating either that Beech Ridge does not need to take action or outlining what action Beech Ridge needs to take to be in compliance with that agency's rules or laws. The Commission also required Beech Ridge to file evidence of acceptance or rejection of the historical/archaeological study with any required mitigation plans prior to commencing construction.

The citizens consider this improper because it moves crucial decisions on siting to other forums where they have no opportunity to participate. To them, these are important issues, ones that are critical to a legal and proper evaluation of the project. As residents, they would have relevant information to offer. Doing it as the Public Service Commission did it takes away any opportunity they might have to participate in or influence the conclusion of the Division of Culture and History, etc.

In mid April, 2007, the Supreme Court accepted the appeal. This means that it made a preliminary evaluation of the case and decided that it should resolve. The case will now be set for argument and decision.