Ehlebracht v. Crowned Ridge Wind II, LLC, #29610

CourtSupreme Court of South Dakota
Writing for the CourtSALTER, Justice
Citation972 N.W.2d 477
Parties In the Matter of the Administrative Appeal of Garry EHLEBRACHT, Steven Greber, Mary Greber, Richard Rall, Amy Rall, and Laretta Kranz, Appellants, v. CROWNED RIDGE WIND II, LLC, and South Dakota Public Utilities Commission, Appellees.
Docket Number#29610
Decision Date23 March 2022

972 N.W.2d 477

In the Matter of the Administrative Appeal of Garry EHLEBRACHT, Steven Greber, Mary Greber, Richard Rall, Amy Rall, and Laretta Kranz, Appellants,
v.
CROWNED RIDGE WIND II, LLC, and South Dakota Public Utilities Commission, Appellees.

#29610

Supreme Court of South Dakota.

ARGUED OCTOBER 5, 2021
OPINION FILED March 23, 2022


A.J. SWANSON, Canton, South Dakota, Attorney for appellants.

DANA VAN BEEK PALMER, MILES F. SCHUMACHER of Lynn, Jackson, Shultz & Lebrun P.C., Sioux Falls, South Dakota, BRIAN J. MURPHY of NextEra Energy Resources, LLC, Juno Beach, Florida, Attorneys for appellees Crowned Ridge Wind II, LLC.

AMANDA R. REISS, KRISTEN N. EDWARDS, Special Assistant Attorneys General, Pierre, South Dakota, Attorneys for appellees South Dakota Public Utilities Commission.

SALTER, Justice

¶1.] Crowned Ridge Wind II, LLC (Crowned Ridge) applied to the South Dakota Public Utilities Commission (the PUC) for a permit to construct a large-scale wind energy farm in northeast South Dakota. Several individuals intervened and objected to Crowned Ridge's application. After conducting an evidentiary hearing, the PUC issued a written decision approving the application. The intervenors appealed to the circuit court, which affirmed

[972 N.W.2d 481

the PUC's decision. Six of the intervenors now appeal to this Court. We affirm.

Facts and Procedural History

¶2.] Crowned Ridge is a wind energy company that sought to construct a wind farm comprised of 132 wind turbines capable of producing 300.6 megawatts of electricity in Codington, Grant, and Deuel Counties (the Project). Under the provisions of SDCL 49-41B-2(13), Crowned Ridge's Project was statutorily defined as a "wind energy facility" because its size and design contemplated generating "one hundred megawatts or more of electricity." The Project also satisfied the broader statutory definition of a "facility," which includes a wide variety of energy facilities. SDCL 49-41B-2(7). Consequently, Crowned Ridge could not begin construction of the Project without obtaining a permit from the PUC. SDCL 49-41B-4.1

[¶3.] Crowned Ridge submitted its application for a permit on July 9, 2019. The six individuals who are the appellants in this appeal (the Intervenors) timely sought and obtained party status to oppose the issuance of a permit.2 Each of the Intervenors are residents of Deuel County living near the Project. Their opposition to the permit was primarily based on the wind turbines’ production of ambient noise and a phenomenon known as shadow flicker, which refers to momentary disruptions of natural sunlight caused by the rotation of a wind turbine's blades.

[¶4.] Crowned Ridge did not propose to construct turbines on land owned by the Intervenors and did not enter into lease or easement agreements with them, as it had done with the other area landowners on whose property the Project was directly sited. Members of this latter group are known as participating landowners, while those in the former category, including the Intervenors, are described as non-participating landowners.

[¶5.] Where, as here, an application meets with opposition, the PUC conducts a contested case hearing using the procedures set out in South Dakota's Administrative Procedure Act contained in SDCL chapter 1-26. See SDCL 49-41B-17.2. For Crowned Ridge's application, the PUC conducted a hearing on February 4–6, 2020, to consider evidence and argument concerning the potential impact of the Project on the environment and surrounding communities.

[¶6.] The evidentiary hearing produced extensive testimony from seventeen witnesses. Many of the witnesses had previously submitted "pre-filed" direct testimony and exhibits to the PUC, detailing their views about the Project. See ARSD 20:10:22:39 (stating in part, "[u]pon the filing of an application pursuant to SDCL 49-41B-11, an applicant shall also file all data, exhibits, and related testimony which the applicant intends to submit in support of its application.").

[¶7.] For instance, Crowned Ridge submitted pre-filed direct testimony from Jay Haley, a wind energy consultant who was engaged by Crowned Ridge to conduct studies on the levels of noise and shadow flicker the Project would produce. At the

[972 N.W.2d 482

evidentiary hearing itself, Haley testified that, based on the "conservative assumptions" of the sound study, the noise levels produced by the Project would fall within the applicable county guidelines of forty-five decibels measured at non-participating residences. Haley further testified that, based on the light study he conducted, the shadow flicker produced by the Project would fall within the county-imposed limits of no more than thirty hours of affected light per calendar year.3

¶8.] Crowned Ridge also submitted pre-filed direct testimony from Christopher Ollson, PhD. Dr. Ollson was engaged by Crowned Ridge to study the potential health implications associated with sound and shadow flicker. At the evidentiary hearing, Dr. Ollson testified that the proposed limits of forty-five decibels of sound at non-participating residences and no more than thirty hours of shadow flicker would pose "no potential health or welfare risk to the county residents."

[¶9.] Darren Kearney, a utility analyst employed by the PUC staff, testified about the process by which the PUC has historically regulated shadow flicker limits. During cross-examination, counsel for the Intervenors questioned Kearney about a lower shadow flicker level (fifteen hours per year) previously imposed as a condition for a different wind energy project, known as Prevailing Wind Park.4 Kearney explained that the fifteen-hour-per-year condition was not a recommendation from the PUC staff, but was instead adopted by the commissioners after an evidentiary hearing. Kearney further testified that, in working with the permit applicants, the PUC staff commonly deferred to county regulations setting the maximum amount of shadow flicker and incorporated those limits into the permit conditions. He stated the "there are no [PUC] regulations. It's a case-by-case basis."

[¶10.] The PUC staff also submitted pre-filed direct testimony from acoustical engineer David Hessler who was engaged to review the noise study conducted by Jay Haley. During cross-examination at the evidentiary hearing, Hessler testified that the Project was "aggressively devised" by Crowned Ridge "in the sense of they're trying to put a lot of turbines into the project area." Hessler stated that Crowned Ridge had accommodated his requests to move certain turbines to alternate locations in an attempt to mitigate sound emissions. Nevertheless, Crowned Ridge was unable to achieve projected noise levels below forty decibels, which Hessler described as the ideal noise limit. In his view, "annoyance and complaints from property owners and residents around the wind farm [are] more likely" at noise levels exceeding forty decibels. Despite this conclusion, Hessler testified that he believed the forty-five-decibel limit proposed by Crowned Ridge was "a reasonable and fair noise limit."

[¶11.] Hessler explained that he was also engaged by the PUC staff for the Prevailing Wind Park application and discussed the variance between the forty-five-decibel limit sought by Crowned Ridge and a forty-decibel condition imposed on Prevailing Wind Park. As part of his assessment of the Prevailing Wind Park project, Hessler recommended a forty-decibel noise limit at

[972 N.W.2d 483

non-participating residences because Prevailing Wind Park was able to achieve the "very, very rare" forty-decibel mark by being "very accommodating" in adjusting turbine sites.

¶12.] Later, in their post-hearing brief to the PUC, the Intervenors claimed that the effect of the turbines’ sound and shadow flicker on their nearby property constituted a burden on land under principles of state easement law, and Crowned Ridge was therefore required to purchase easements or enter into lease agreements before constructing turbines near their property. The Intervenors also alleged that the PUC failed to properly exercise its rulemaking authority because it had not adopted standards for the maximum levels of sound and shadow flicker. On this latter point, the Intervenors highlighted the difference between the noise and shadow limits sought by Crowned Ridge and those imposed by the PUC on the Prevailing Wind Park project.

[¶13.] The PUC voted unanimously to approve Crowned Ridge's permit. In its final decision and order,5 the PUC issued findings of fact and conclusions of law. See SDCL 1-26-24 ("The ... decision shall contain a statement of the reasons therefor and findings of fact on each issue and conclusions of law necessary to the proposed decision ...."). As they relate to this appeal, the PUC found that Crowned Ridge "has all land rights needed to construct and operate the Project[,]" "that the Project will not adversely impact property values[,]" that Crowned Ridge "has appropriately minimized the sound level produced from the Project" and has "appropriately minimized the shadow and flicker for the Project[.]" The PUC ultimately concluded that Crowned Ridge "satisfied [its] burden of proving all of the requirements imposed by SDCL 49-41B-22 for issuance of the permit to construct by the preponderance of the evidence."6

[¶14.] The PUC's order contained forty-nine permit conditions. Condition...

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  • Ehlebracht v. Deuel Cnty. Planning Comm'n, #29352
    • United States
    • Supreme Court of South Dakota
    • March 23, 2022
    ...with these standards, the restrictions surely fall well short of the "truly irrational" standard for substantive due process violations.[972 N.W.2d 477 [¶44.] The Appellants offer what they describe as an additional due process argument premised on the assumption that the Board's issuance o......
1 cases
  • Ehlebracht v. Deuel Cnty. Planning Comm'n, #29352
    • United States
    • Supreme Court of South Dakota
    • March 23, 2022
    ...with these standards, the restrictions surely fall well short of the "truly irrational" standard for substantive due process violations.[972 N.W.2d 477 [¶44.] The Appellants offer what they describe as an additional due process argument premised on the assumption that the Board's issuance o......

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