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United States

Local opposition put in its place -- Fundamental court ruling

A precedent setting court ruling in the US Northwest has changed the rules of the game when it comes gaining permits for wind farms in the state of Washington. State level regulators now have the final say over county authority opposition to wind plants.

After more than six years of wrangling, the Washington state supreme court gave wind project developer Horizon Wind Energy, a division of European power company Energias de Portugal, permission to move forward on its 65-turbine Kittitas Valley wind project. The court's unanimous ruling follows a 2007 decision by Governor Chris Gregoire and the state's Energy Facility Site Evaluation Council (EFSEC) to approve the project, which overruled Kittitas County's 2006 rejection.

"The supreme court decision removes any question about the strong role that wind power is going to play in Washington state," says Dave Steeb of Enxco, a wind project developer that saw its nearby 180 MW Desert Claim project put on hold in June 2007. "The supreme court found that Horizon did show good faith in negotiating with the county and that's what we did, too." Horizon chose not to comment on the court case.

James Carmody, a local attorney representing Residents Opposed to Kittitas Turbines, argued before the court that EFSEC should not have the authority to overrule the county, which wanted Horizon to specify individual turbine placements because of setback concerns voiced by affected homeowners. "But when you get to the supreme court, what you're dealing with is legal issues, not fact-specific siting decisions," Carmody says. "So the real question was, who gets to make the decision in the state of Washington as to a wind power facility or an alternative energy facility?"

While EFSEC was initially created to grease the skids for nuclear projects a generation ago, Gregoire's decision marked the first time a governor overruled a local decision-making body to site a power plant. Horizon had already scaled the project back to 65 turbines to appease opponents after initial company plans called for 121 machines.

Final decision

Carmody says the ruling by the state's highest court effectively ends the debate, because there are no federal issues or constitutional issues that could justify a federal appeal. "There's nothing that can get you to the US Supreme Court, which would be the only other place you could go. So it's a final decision."

Now Carmody is concerned about Enxco, which will soon be submitting a revised application to EFSEC. "Unless the EFSEC council acts in a different way, I would fully expect Enxco to literally ignore the local process," Carmody says. "They'll just go to the state, where they've got a pretty friendly forum."

But Steeb says Enxco has no plans to use the new court ruling to run roughshod over the local process. "We're open to dealing with the county," he says. "Hopefully, the county will be more open to discussions in the future."

The significance of the ruling is limited to Washington state, but since the state is already among the nation's top five wind producers, with close to 1400 MW installed, the precedent is an important one for the wind industry. Kittitas County is already home to Puget Sound Energy's 229 MW Wild Horse wind farm, which was recently approved for a project expansion. The county also has approved a 103.5 MW Invenergy project.

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