Lawyers for Energy & Environment Legal Institute have argued that Colorado’s standard illegally regulated economic activity outside the state’s borders because the state is part of an electric grid that serves 11 states and parts of Mexico and Colorado. Consequently, the group argued that the law discriminated against coal and other fossil fuel generators located outside Colorado.
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Residents remained divided over the project. Many long-time ranchers in the area supported the wind farm, and told the commissioners that they were happy to see some economic vitality come back to the region. But other residents fought bitterly against the entire wind farm project, and still others opposed only the above-ground powerline
While NextEra Energy Resources continues to construct a wind farm in eastern El Paso County, a coalition of concerned residents in the area has been fighting the project by filing a lawsuit against NextEra and the EPC Board of County Commissioners. The same coalition filed an injunction to halt construction on the wind farm until a decision on the lawsuit had been reached.
A lawsuit seeking to dismantle a wind farm project in eastern El Paso County will proceed despite objections from both El Paso County and the wind farm's owner, NextEra Energy Resources. But while the county will have to defend its February approval of the wind farm, attorneys will also fight a separate claim that the county's 15-hour hearing on the project was a farce and that the vote was predetermined based on pressure from NextEra.
“I have the reasonable belief that the reason why NextEra is requiring a $400 million bond is because they know that the village coalition can’t come up with even 1 percent of that, which would be $4 million. If they get the judge to agree to any part of it, they have completely shut us down. They will have effectively kept us from having our day in court."
For NextEra, halting the project would mean a potential loss of millions invested in constructing the wind farm, something that the company believes should be compensated for if it is forced to stop its work.
El Paso County Property Rights Coalition, a Colorado, a Colorado limited cooperative association et. al. filed this complaint against the Colorado County Commissioners of El Pase County and NexEra Energy Resources following the county's approval of the Golden West wind energy facility, a 250 MW project. The project was initially approved by the County in December 2013. Within weeks of the project permit being issued, NextEra Energy acquired the rights of the project and started the process of amending the plans to move the turbines, increase their height and seek permission to raise the transmission line so it was above ground. On January 6, 2015, the Planning Commission considered the amended project and ultimately recommended it be denied by a 6-3 vote.
Eastern El Paso County residents say they intend to file for an injunction to try to halt the construction of a controversial wind farm project until their lawsuit is heard.
The suit is another development in an ongoing effort by residents to block a wind farm project run by NextEra Energy Resources, which plans to raise at least 126 wind turbines over the plains near Calhan. Although the commissioners approved the plan in 2013, amendments to the project raised the ire of area residents who fear the wind farm and its accompanying above-ground power line will damage their property values and their health.
In the future, the wind industry should expect that in-state preferences and distributed generation requirements will be the focus of Commerce Clause attacks. Although these provisions can be justified. the strict standard of review applied to discrimination among states will create more risk for these provisions.
If the Tenth Circuit upholds Judge Martinez’s decision, the challenge — and other constitutional challenges to RPS programs and their provisions — could discourage the adoption of programs in additional states, or the expansion of existing programs. “If you don’t know how far you can go, it’s difficult for a state legislator to say, ‘OK, let’s do this.’”