It may be news to a lot of renewable energy supporters, but a major element of meeting demand for alternative energy in Washington is in the hands of the state Supreme Court. Justices are mulling a case that will have broad implications for siting new renewable energy facilities in the state, with a decision expected later this year or early next year.

The case, Residents Opposed to Kittitas Turbines v. Gregoire, involves an effort by AWB member Horizon Wind Energy LLC (see our Member Spotlight on page 40) to develop the Kittitas Valley Wind Power Project, an energy facility in a wind-rich area between Ellensburg and Cle Elum.

Horizon Wind’s subsidiary, Sagebrush Power Partners, submitted its application for certification of the site for the facility in early 2003. The application went to the Energy Facilities Site Evaluation Council, the state agency created as a “one-stop” licensing shop for large energy projects. After an administrative process, EFSEC makes a recommendation to the governor, who then has the choice to approve a proposed site certification agreement.

Early opposition
From very early on, the proposed project met with opposition from some neighbors and from Kittitas County. Concerns ranged from the aesthetic impact of the wind turbines on neighboring land owners to the effect of state law preempting local land use and zoning rules that could apply to the project.

AWB contended, both in the EFSEC process and in two different letters to Gov. Gregoire, that the process is fair. It led to unprecedented scrutiny of the environmental and land use impacts of the project by a number of federal, state, and local agencies, which turned up no adverse environmental impacts.

Just as important, AWB pointed out the project and ones like it are a crucial component of Washington’s energy future if the state is to meet the renewable energy standards imposed by Initiative 937 in 2006.

EFSEC recommended approval of the site in March 2007, but Gov. Gregoire asked the council to reconsider its approval with respect to the amount of setback between the proposed wind turbines and landowners not participating in the project.

Taking these concerns into account, EFSEC amended its recommendation and returned it to the governor in August 2007. The following month, Gov. Gregoire approved the site certification agreement for the project.

Kittitas County and the citizen group opposed to the project appealed the governor’s approval and the matter quickly came before the state Supreme Court. At this level, the issues involve whether the Supreme Court has jurisdiction to hear the appeal directly and whether EFSEC’s process really does trump local land use and zoning laws. Horizon Wind has also asked the court for an expedited decision, citing the many time-sensitive practical considerations involved in bringing an energy facility on line.

AWB steps in
AWB submitted a friend-of-the-court brief in the case, and was joined by the Northwest and Intermountain Power Producers Council. The brief made three basic points to the court.
First, a basic element of Washington’s economic vitality and global competitiveness is the availability of abundant energy to meet a growing demand at a reasonable cost.

Second, our state’s energy policy — starting with I-937 but including recent executive orders of the governor and passage of a comprehensive climate change bill, HB 2815, in 2008 — is rapidly moving toward alternative and renewable energy sources, both as a preference and as a mandate.

Third, the prospect of delays and uncertainty in the permitting process engendered by a lengthy judicial review process on top of a half-decade of administrative review will have a chilling effect on private industry’s desire to invest in new projects to meet the state’s growing energy needs as future applicants factor into their decision making the higher costs and delays experienced by predecessors.

The Supreme Court heard the case on June 26, 2008, and did not indicate whether it would be deciding the matter on an expedited basis. A decision could come any day, or as late as next year.

What’s at stake, though, is clear. When it comes to meeting the Washington’s surging demand for renewable sources of energy, will the permitting, appeals, and judicial process facilitate — or frustrate — that goal?