Supreme Court affirms PSC decision approving Brooke County gas-powered plant

By Chris Dickerson | Nov 3, 2018

CHARLESTON – The state Supreme Court has affirmed the state Public Service Commission’s approval of Brooke County Power’s gas plant, saying developers had “substantially complied” with state power plant siting rules.

The court issued the unanimous memorandum decision Nov. 1, affirming Energy Solutions Consortium’s siting certificate for the facility located near Colliers and dismissing objections by the Ohio Valley Jobs Alliance and a local landowner group.

The West Virginia Oil and Natural Gas Association and the West Virginia State Building and Construction Trades Council also intervened in support of the project.

“We are pleased with the unanimous decision by the West Virginia Supreme Court to affirm the citing certificate of the ESC Brooke County Power project issued by the West Virginia Public Service Commission after a frivolous appeal,” ESC President Drew Dorn said. “We are excited to clear another important hurdle to bring this project and the huge economic benefits it will deliver to West Virginia.

“West Virginia sits atop of one of the most prolific natural gas reserves in the world. However, as the surrounding states of Ohio and Pennsylvania have already constructed dozens of new natural gas power plants, West Virginia still has no base-load capacity natural gas power to date.

According to filings, the facility will consume $177.5 million annually of natural gas, supporting hundreds of jobs in the region associated with the natural gas industry. In addition to the labor required for construction, the also will create many indirect economic benefits to the local community including over $1.25 billion in impact, according to estimates.

Once in operation, the facility will engage up to 30 full-time and part-time employees. It also could create 1,164 direct, indirect and induced jobs due to requirements for maintenance, supplies, fuel and other needed local services. The annual economic impact of the facility is expected to be about $440 million annually.

“From the standpoint of natural gas development and economic benefit to Brooke County and the state, this is a very positive and far-reaching case,” Spilman Thomas & Battle attorney Lee F. Feinberg told The West Virginia Record. “West Virginia, and this plant in particular, sit on top of some of the most prolific natural gas reserves in the world.

“The purpose of this 850 megawatt natural gas-fired base load generation plant, known under federal law as an Exempt Wholesale Generator, is to use about 50 Bcf of those reserves per year and to produce low cost clean energy to inject into the national electric grid.”

Feinberg said Pennsylvania and Ohio already have developed, certificated and constructed many similar plants.

“This project can provide West Virginia with lower cost base load power to more effectively compete with Ohio and Pennsylvania on the national electric grid,” he said. “The economic benefit to construction and other workers, natural gas producers and West Virginia businesses will be substantial, amounting to billions of dollars over a 30-year period.”

The plant is to be built on the site of a former strip mine, which is now owned by the state Department of Natural Resources. Brooke County Power entered into agreements with the DNR, the Brooke County Commission, the Brooke County Board of Education, the Sheriff of Brooke County and the Assessor of Brooke County to implement the construction and operation of the plant.

Additionally, an agreement with the West Virginia State Building and Construction Trades Council, AFL-CIO will provide the source of labor for the construction of the plant and thus assure that the construction force will be overwhelmingly from West Virginia.

The opponents fought the plant, arguing that the county commission had erred in several ways as it tried to balance the interests of the landowners against the benefit to the state. The OVJA was funded by coal giant Murray Energy.

The Building Trades, the West Virginia Oil and Natural Gas Association, the Brooke County Commission, the Board of Education of Brooke County and the Independent Oil and Gas Association filed briefs in support of the PSC decision.

The court rejected the arguments of the opponents, saying “in the larger scheme of the evidentiary hearing and the overwhelming evidence presented that the project is in the public interest, in contrast to the total lack of admissible evidence presented by (the opponents) to refute it, we are not inclined to reverse the decision of the Commission …”

The court said the commission had “ample information with which to balance all of the respective interests and to reach a decision relating to the public interest.”

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Spilman Thomas & Battle, PLLC West Virginia Supreme Court of Appeals

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