CHARLESTON – Justices of the state Supreme Court of Appeals gasped and groaned when Public Service Commission attorney John Auville told them the commission and its employees are learning about wind turbines as they go along.
His comment, in oral argument Jan. 9, alarmed the Justices because the commission conditionally has approved construction of 124 turbines, each 400 feet tall, in Greenbrier County.
Auville sensed that he had embarrassed his client.
"It's not just the staff," he added. "Everybody is learning as they go along."
Turbine opponents want the Supreme Court to dismiss the project application of developer Beech Ridge Energy or require the commission to hear more evidence.
Although the Justices granted an appeal, they realized at oral argument that they may have jumped into the dispute before they should have.
It sounded to them as if the Public Service Commission has to hear evidence from opponents without the Court ordering the commission to hear it.
Opponents, calling themselves Mountain Communities for Responsible Energy, complain that the commission failed to evaluate the impact of the turbines on local culture and history.
At oral argument, Justice Robin Davis told their attorney, Justin St. Clair of Peterstown, that the commission set 25 conditions Beech Ridge must meet.
St. Clair said one condition required a report on culture and history from the state Historic Preservation Office, but he said Beech Ridge could come back months or years later with affidavits that opponents could not challenge.
Justice Brent Benjamin told St. Clair that conditional approval "seems to be a plus in some respects to you," because opponents could challenge all 25 conditions.
Chief Justice Spike Maynard asked St. Clair what he wanted the Court to do. St. Clair said the Court should direct the commission to dismiss the application.
"Wouldn't that kill the project?" Maynard asked.
St. Clair said it would not. He said the Court should at least provide a forum for development of evidence.
Justice Joseph Albright said St. Clair's complaint lay with the Historic Preservation Office, not the Public Service Commission. He asked why St. Clair didn't sue Historic Preservation and demand a hearing from them.
St. Clair said Historic Preservation doesn't conduct hearings.
"I don't think we considered it because there is no forum," he said.
Maynard asked if he wanted the Court to create an adversary forum in the commission. St. Clair said he did not.
"I'll take a look at your filing and see what it is that you want," Maynard said.
Albright asked if the commission would hold a hearing after meeting all 25 conditions.
"I have a feeling that the only topic at that hearing will be whether there is a letter from HPO," St. Clair said.
"I'm not sure that's a procedural defect," Albright said.
Jeffrey Eisenbeiss, representing his wife and two daughters without an attorney, told the Justices that Beech Ridge's application contained inaccuracies and misrepresentations.
Davis asked him if opponents had an opportunity to present experts. Eisenbeiss said they did, within their financial means.
Davis said both sides had experts.
"Every day in every courthouse, that's what happens," she said. "People present their experts and a decision is made."
Eisenbeiss said the commission didn't have all the information because he couldn't afford to produce it.
"I'm captivated by your argument because unlike the courts, the PSC has a staff with expertise," Albright said.
He asked if it was essential to supplement the staff to gain expertise. Eisenbeiss said that would be fair. He asked the Justices to write a guiding opinion to serve the public.
Auville rose to respond for the commission, and Albright asked him if it was fair to say the commission lacked expertise on wind power.
Auville said the commission could apply industry standards.
"Industry standards are a very bad measure of anything because the fox is in the chicken coop," Albright said.
Maynard asked if the commission would receive reports on all 25 conditions. Auville said it would.
Albright asked if opponents could litigate each report. Auville said they could.
"You may be held to that," Albright said. "It sounds to me as awkward as it can be."
Maynard said, "Then what are we doing here today?"
Davis said, "You're going to have 25 and every one can be relitigated before the PSC?" Auville said yes.
"This is kind of a new area for everybody," he said. "The commission and the staff are learning as we go along."
That startled the Justices.
Davis asked if staff contacted Kansas about its experience with turbines, and Maynard asked if they contacted Southern California. Auville said they did not.
He said the application included history and culture. He said the commission decided there was no potential harm that needed to be mitigated.
"To say there was no culture or history in it, that's not correct," he said.
Next, Vincent Trivelli of Morgantown told the Justices that the West Virginia State Building and Construction Trades Council was comfortable with the approval process.
He said the developers needed certainty. He said they would hire hundreds of local workers.
"These are nothing but tax credits for wealthy people," Justice Larry Starcher said.
Maynard said the question for the Court was whether the commission followed the law, not whether West Virginia should have windmills.
For Beech Ridge Energy, Lee Feinberg of Charleston said the commission would retain continuing jurisdiction over the conditions it set.
He said the project would pay the state $300,000 a year in taxes for at least 20 years.
A Court decision will follow.