In a case important beyond the State of Washington, the State’s highest court expressly acknowledged the dynamic tension of balancing the competing interests of the ecology versus generating electricity, coming down on the side of electricity, all be it renewable energy from wind turbines.
The Washington legislature created the Energy Facility Siting Evaluation Council establishing an expedited and centralized process for reviewing potential energy sites in the State. The stated purpose of the authorizing statute is “to recognize the pressing need for increased energy facilities” and to promote the creation of such facilities in a way that will “produce minimal adverse effects on the environment, ecology of the land and its wildlife, and the ecology of state waters and their aquatic life.” RCW 80.50.010.
Whistling Ridge Energy Project submitted an application to EFSEC to build and operate a wind powered 50 turbine energy facility in southeastern Washington. After a 3 year review and approval process the EFSEC recommended and then Governor Chris Gregoire approved a scaled down project with 35 turbines.
In their court challenge protestants “do not argue that EFSEC failed to follow the statutorily required steps.” They appear to have asked for more study and evaluation of everything from historic preservation to aesthetics. In what many be the best articulated challenge, the protestants argued that the project did not meet the application requirements that the required “discussion of impacts shall also include … [a]n assessment of risk of collision of avian species with any project structures, during day and night, migration periods, and inclement weather.” There was such a discussion, but not to the satisfaction of the protestants, who wrongly argued that to “produce minimal adverse effects on the environment” requires the imposition of every possible mitigation measure.
The Washington high court rejected the challenge making clear “this argument reflects an extreme reading of the statute and misunderstands EFSEC’s role in balancing competing interests.”
The court expressly acknowledged the balancing of the competing interests of the ecology and generating electricity, here by wind turbines, coming down squarely on the side of wind turbines.
Blowin’ in the Wind has been described as an anthem of the 1960s, but if more states act to protect the approval of renewable energy installations from competing regulatory schemes, “the answer, my friend”, to our energy challenges will be “blowin’ in the wind.”
The case is Friends of Columbia Gorge, Inc. v. EFSEC, 2013 WL 4608563
Article by Stuart Kaplow, appearing courtesy Green Building Law Update.
