Mountain Communities v. Pub. Serv. Com'n

• Court: West Virginia Supreme Court
• Writing for the Court: Per Curiam
• Citation: Mountain Communities v. Pub. Serv. Com'n, 665 S.E.2d 315, 222 W.Va. 481 (W. Va. 2008)
• Decision Date: 23 June 2008
• Docket Number: No. 33376.,No. 33375.,33375.,33376.
• Parties: MOUNTAIN COMMUNITIES FOR RESPONSIBLE ENERGY, Intervenor Below, Appellant v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Beech Ridge Energy, L.L.C.; West Virginia State Building and Construction Trades Council, AFL-CIO, Defendants Below, Appellees. Alicia A. Eisenbeiss and Jeffrey C. Eisenbeiss, Intervenors Below, Appellants v. Public Service Commission of West Virginia and Beech Ridge Energy, L.L.C.; West Virginia State Building and Construction Trades Council, AFL-CIO, Defendants Below, Appellees.

665 S.E.2d 315

222 W.Va. 481

MOUNTAIN COMMUNITIES FOR RESPONSIBLE ENERGY, Intervenor Below, Appellant v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Beech Ridge Energy, L.L.C.; West Virginia State Building and Construction Trades Council, AFL-CIO, Defendants Below, Appellees.

Alicia A. Eisenbeiss and Jeffrey C. Eisenbeiss, Intervenors Below, Appellants v. Public Service Commission of West Virginia and Beech Ridge Energy, L.L.C.; West Virginia State Building and Construction Trades Council, AFL-CIO, Defendants Below, Appellees.

No. 33375.

No. 33376.

Supreme Court of Appeals of West Virginia.

Submitted January 9, 2008.

Decided June 23, 2008.

Dissenting Opinion of Justice Starcher July 17, 2008.

Syllabus by the Court

1. "In reviewing a Public Service Commission order, we will first determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. We will examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Finally, we will determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors." Syllabus Point 2, Monongahela Power Co. v. Public Service Commission, 166 W.Va. 423, 276 S.E.2d 179 (1981).

2. "The detailed standard for our review of an order of the Public Service Commission contained in Syllabus Point 2 of Monongahela Power Co. v. Public Service Commission, 166 W.Va. 423, 276 S.E.2d 179 (1981), may be summarized as follows: (1) whether the Commission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence to support the Commission's findings; and, (3) whether the substantive result of the Commission's order is proper." Syllabus Point 1, Central West Virginia Refuse, Inc. v. Public Service Commission, 190 W.Va. 416, 438 S.E.2d 596 (1993).

3. "`[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.' United Fuel Gas Company v. The Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957). Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W.Va. 146, 174 S.E.2d 331 (1970). Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W.Va. 387, 376 S.E.2d 593 (1988)." Syllabus Point 1, Sexton v. Public Service Commission, 188 W.Va. 305, 423 S.E.2d 914 (1992).

4. "The Public Service Commission was created by the Legislature for the purpose of exercising regulatory authority over public utilities. Its function is to require such entities to perform in a manner designed to safeguard the interests of the public and the utilities. Its primary purpose is to serve the interests of the public. Boggs v. Public Service Commission, 154 W.Va. 146, 174 S.E.2d 331 (1970)." Syllabus Point 1, West Virginia-Citizen Action Group v. Public Service Comm'n, 175 W.Va. 39, 330 S.E.2d 849 (1985).

5. "`An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.' Syllabus Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)." Syllabus Point 2, WV Dept. of Health & Human Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004).

Justin R. St. Clair, Esq., Dalton Law Offices, Peterstown, WV, for Mountain Communities for Responsible Energy.

Jeffrey C. and Alicia A. Eisenbeiss, Renick, WV, pro se.

Lee F. Feinberg, Esq., Susan J. Riggs, Esq., Grant P.H. Shuman, Esq., Spilman Thomas & Battle, P.L.L.C., Charleston, WV, for Beech Ridge Energy, L.L.C.

Vincent Trivelli, Esq., The Calwell Practice, P.L.L.C., Morgantown, WV, for West Virginia State Building and Construction Trades Council, AFL-CIO.

John Auville, Esq., Richard E. Hitt, Esq., Charleston, WV, for West Virginia Public Service Commission.

PER CURIAM.

These consolidated cases are before this Court upon appeal of a final order of the Public Service Commission (hereinafter, the "Commission"). The appellant, Mountain Communities for Responsible Energy (hereinafter, "MCRE"), a nonprofit group, and co-appellants Alicia A. and Jeffrey C. Eisenbeiss, two local property owners, appeal the Commission's January 11, 2007, final order denying their petitions for reconsideration of its August 28, 2006, order, which conditionally granted the application of the appellee, Beech Ridge Energy, LLC (hereinafter, "Beech Ridge"), to build a wind-powered wholesale electric generating facility. The West Virginia State Building and Construction Trades Council, AFL-CIO (hereinafter, the "Trades Council"), intervened in the matter before the Commission in order to ensure that the construction of the proposed facility would result in a substantial positive impact on the local economy and local employment as required by W.Va.Code § 24-2-11c(c) (2003). For the reasons set forth below, the Commission's final orders are affirmed.¹

I. FACTS

On November 1, 2005, the appellee, Beech Ridge Energy, LLC, applied to the Public Service Commission for a siting certificate pursuant to W.Va.Code §§ 24-2-1(c) (2003) and 24-2-11c. Beech Ridge sought approval from the Commission to build a 186 megawatt wind-powered electric generating facility,² to be located nine miles northeast of Rupert in Greenbrier County, West Virginia, and for a 13.8 mile 138 kV transmission line to connect the generating facility to Allegheny Power Company's Grassy Falls substation near Nettie in Nicholas County, West Virginia.³

Beech Ridge proposed to construct 124 wind turbines sized at 1.5 Megawatts, mounted on 262 foot tubular steel towers, in addition to 150 pole structures for the transmission line,⁴ with a total project cost of $300 million. The turbines will span approximately 23 miles, with the generating facility footprint being approximately 300 acres along various rural ridgetops located in western and northwestern Greenbrier County. The turbines will be located on a 100,000 acre tract owned by MeadWestvaco Corporation.⁵

Beech Ridge maintains that the project will create more than 200 temporary construction jobs in addition to fifteen to twenty permanent jobs with a $35,000 average annual salary. Beech Ridge also entered into an agreement with the Greenbrier County Commission that ensures Beech Ridge will pay at least $400,000 per year, in either taxes or donations, to Greenbrier County for a period of twenty years. Moreover, the project is expected to result in a minimum of $200,000 in yearly tax revenue to the State, as well as contribute to a growth in tourism.

The Commission received a substantial amount of public comment concerning the project in the form of thousands of letters, with two-thirds to three-fourths of the letters opposing the project. On December 7, 2005, Mountain Communities for Responsible Energy filed its petition to intervene. On February 6, 2006, MCRE was granted intervenor status, along with co-appellants Alicia A. and Jeffrey C. Eisenbeiss, two local property owners.⁶

On April 25, 2006, the Commission conducted two hearings in Lewisburg, West Virginia, to receive public comment on Beech Ridge's application. Several hundred people attended each hearing and many in attendance voiced their opinions regarding the proposed project. On May 10, 11, 12, 16, 17, and 18, 2006, the Commission conducted evidentiary hearings at its office in Charleston, West Virginia. On August 28, 2006, the Commission entered an order granting the certificate to Beech Ridge. It did so, however, with numerous preconstruction and construction conditions including:

General Preconstruction and Construction Certificate Issues

(1) Prior to commencing construction, Beech Ridge must file a verified statement indicating that all pre-construction conditions and requirements of the certificate have been met.

(2) Beech Ridge shall require all contractors to use standard noise buffers on all equipment and trucks.

(3) Beech Ridge shall require contractors to use pile driving equipment which have the least noise impact and restrict pile driving, during the weekdays, to 7 a.m. to 7 p.m.

(4) All construction activities should take place mostly during daylight hours.

(5) Construction activities should be limited during church hours.

(6) If dynamiting should become necessary, it should be limited to daylight hours and should follow all State and Federal rules, regulations, and laws.

(7) Beech Ridge must dispose of all contaminated soil and construction debris in approved landfills in accordance with appropriate environmental regulations.

(8) Beech Ridge must design, install and implement a fire protection system, using industrial best practices, in accordance with all applicable fire safety codes.

(9) Beech Ridge must coordinate with fire, safety and emergency personnel during all stages of the project to promote efficient and timely emergency preparedness and response.

(10) The siting and support transmission facilities certificates shall become invalid if Beech Ridge has not commenced a continuous course of construction within five years of the date the final certificate is granted or has...