Energy Project Gets Second Wind in Court

(CN) - The Washington Supreme Court rebuffed a challenge to a contested $200 million wind farm in Kittitas County, saying the state had an overpowering public interest in "providing abundant and affordable energy."

The county and a group of residents had disputed the state's authority to override the county in allowing up to 60 wind turbines to be built on state and private ridgetops near Highway 97. Residents voiced concerns over wildlife and noise impacts, property values, safety hazards, and visual concerns including "shadow flicker," or a "pulsating light effect" which they described as disconcerting to animals and people.

Horizon Wind Energy's application for site certification underwent various modifications over the four years since its original filing in 2003, including halving the number of proposed turbines and setting them back 1,000 feet from non-participating private properties.

The setback issue became a major sticking point, with the county demanding 2,000 feet to mitigate "shadow flicker" and the energy company claiming that any setback greater than 1,320 feet would render the project unviable.

Washington's governor gave the plan a green light after a multi-agency council organized under the state Energy Facilities Site Locations Act recommended approval over county objections and local ordinances.

The Washington Supreme Court devoted much of its nearly 60-page opinion to jurisdictional concerns, concluding that it retains discretionary power to act as an appellate court in such cases.

"The stakes in this case are high," Justice Susan Owens wrote, as it pitted a state council against local government.

The state's high court resolved some local-versus-state tension by saying that the Energy Facilities Site Locations Act is a specific exception to the general goals of Washington's Growth Management Act.

In allowing preemption of local law, the court concluded that no acceptable alternative locations were available, that energy companies had sought a compromise in good faith, and that the state had a public interest in providing affordable energy.

Site approval did not violate a state "appearance of fairness doctrine" because alleged chairman bias was unfounded, the court added. The opinion rejected the argument that wind turbines can't be considered an "energy facility," saying that the Act clearly applies to all alternative energy, including wind power. The justices also upheld an environmental impact statement that spent 43 pages addressing visual impacts of the turbines.

In a footnote, the court acknowledged the visual impact of the turbines, quoting from Don Quixote's observation on windmills: "'they are giants: and, if thou art afraid, get thee aside and pray, whilst I engage with them in fierce and unequal combat.'"

The Yakima Herald-Republic reported that the $200 million wind farm, expected to produce from 100 to 150 megawatts of electricity, has the Sierra Club's blessings.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit