Posted By: Dwight Merriam, Partner, Robinson & Cole LLP
So, who controls the wind? Perhaps it is the Greek wind gods, the Anemoi (Boreas, Notus, Zephyrus, and Eurus) or the Roman god, Venti. In Washington State, it looks like it is Governor Christine Gregoire.
With wind power capable of producing electricity at rates quite comparable with fossil fuel and nuclear, but maybe not hydro, and federal and state economic incentives, the growth has been substantial. Last year, production grew 45% and over 1% of our power now comes from the wind. By way of comparison, nuclear provides 20%.
With wind turbines popping up across the landscape, local governments have started playing a game of Whac-a-Mole™ — doing what hey can to regulate the installation of wind turbines. Often, local governments lump all types together: from backyard systems of 10 kWh or less, to mid-sized systems such as governments themselves might install to power local operations including schools and waste water treatment; to wind farms, the largest of which in the United States may be the Horse Hollow Wind Energy Center, in Taylor County, Texas, with 421 wind turbines and a capacity of 735 megawatts.
If you want to read just one article on the subject, I suggest Professor Ron Rosenberg’s recent contribution. He spoke on the subject at IMLA’s Nashville conference. He and I attended to graduate planning school together. He knows better than most what is going on. See Ronald H. Rosenberg, “Diversifying America’s Energy Future: The Future of Renewable Wind Power,” Virginia Environmental Law Journal, Vol. 26, p. 505 (2008) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152405. He suggests that decision making might be vested in the states with state consideration of local policies. At 543. He describes the law as “evolving.”
I have a forthcoming article in the Vermont Journal of Environmental Law on backyard wind turbines in which I discuss permissive local regulation for small systems. The state may not have any real interest in the small systems.
On November 20th the State of Washington Supreme Court handed down a decision in Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, available at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=813329MAJ. The Washington State Energy Facilities Site Locations Act governs the relocation, construction, and operating conditions of energy facilities in Washington. The law creates a process for determining energy facility locations across the state and requires site certification, a binding agreement between the applicant and the State, and conditions of approval that will assure the applicant’s compliance with regulations related to the construction and operation of the facility.
The Energy Facility Site Evaluation Council is a multiagency body which administers the site certification process. The county where a proposed facility might be located appoints a representative to the Council for consideration of the application. The Council holds a hearing on a proposed facility to determine if it is consistent with the county land use plans and zoning laws.
Horizon Wind Energy proposed 121 wind turbine towers in Kittitas County. The County had adopted a Wind Farm Resource Overlay Zone ordinance. At the hearing the Council and the County agreed the application was inconsistent with the County ordinance. There was lots of procedural wrangling and going back and forth. The decision runs 59 pages, so you’ll have to read it if you want to know all the machinations.
The “bottom line” – and isn’t the world of the blogosphere all about the sound-bite bottom line? — is that the Energy Facilities Site Locations Act does not violate the state’s Grwoth Management Act in preempting the County’s land use and zoning laws. There was substantial evidence to support the preemption, adequate mitigation of visual impacts and no violation of the appearance of fairness doctrine.
As Seneca said: “If a man does not know what port he is steering for, no wind is favorable to him.” The first step in an orderly process of promoting wind power development is to decide who decides….