Residents Opposed Turbines v. State Efsec

• Decision Date: 20 November 2008
• Docket Number: No. 81427-9.,No. 81332-9.,81332-9.,81427-9.
• Citation: 197 P.3d 1153,165 Wn.2d 275
• Court: Washington Supreme Court
• Parties: RESIDENTS OPPOSED TO KITTITAS TURBINES and F. Steven Lathrop, Petitioners, v. STATE ENERGY FACILITY SITE EVALUATION COUNCIL (EFSEC) and Christine O. Gregoire, Governor of the State of Washington, Respondents. Kittitas County, a subdivision of the State of Washington, Petitioner, v. The Honorable Christine O. Gregoire, Washington State Governor; Energy Facility Site Evaluation Council; Sagebrush Power Partners L.L.C.; Horizon Wind Energy; Washington State Department of Community, Trade and Economic Development; Counsel for the Environment; Department of Ecology; Department of Fish and Wildlife; Utilities and Transportation Commission; Department of Natural Resources; Department of Transportation; Renewable Northwest Project; Phoenix Economic Development Group; Sierra Club Cascade Chapter; Residents Opposed to Kittitas Turbines (ROKT); and Steven Lathrop, Respondents.

197 P.3d 1153

165 Wn.2d 275

RESIDENTS OPPOSED TO KITTITAS TURBINES and F. Steven Lathrop, Petitioners, v. STATE ENERGY FACILITY SITE EVALUATION COUNCIL (EFSEC) and Christine O. Gregoire, Governor of the State of Washington, Respondents.

Kittitas County, a subdivision of the State of Washington, Petitioner, v. The Honorable Christine O. Gregoire, Washington State Governor; Energy Facility Site Evaluation Council; Sagebrush Power Partners L.L.C.; Horizon Wind Energy; Washington State Department of Community, Trade and Economic Development; Counsel for the Environment; Department of Ecology; Department of Fish and Wildlife; Utilities and Transportation Commission; Department of Natural Resources; Department of Transportation; Renewable Northwest Project; Phoenix Economic Development Group; Sierra Club Cascade Chapter; Residents Opposed to Kittitas Turbines (ROKT); and Steven Lathrop, Respondents.

No. 81332-9.

No. 81427-9.

Supreme Court of Washington, En Banc.

Argued June 26, 2008.

Decided November 20, 2008.

Gregory L. Zempel, Kittitas County Prosecutor's Office, Neil Alan Caulkins, Jeffrey David Slothower, Attorney at Law, Ellensburg, WA, James Cortland Carmody, Velikanje Halverson PC, Yakima, WA, for Petitioners.

Kyle Joseph Crews, Attorney General's Office, William Berggren Collins, Darrel Lee Peeples, Attorneys at Law, Frederick Dee Gentry, Bean Gentry Wheeler & Peternell, Narda D. Pierce, Benedict Garratt Pond & Pierce, PLLC, Olympia, WA, Timothy Laurence McMahan, Erin L. Anderson, Stoel Rives Law Firm, Portland, OR, Susan Elizabeth Drummond, Foster Pepper PLLC, Seattle, WA, for Respondents.

Susan Ackerman, Attorney at Law, Portland, OR, Kristopher Ian Tefft, Christian Michael McCabe, Association of Washington Business, Olympia, WA, Amicus Curiae on behalf of Association of Washington Business, Amicus Curiae on behalf of Northwest & Intermountain Power Producers Coalition.

Sara Patton, Northwest Energy Coalition, Seattle, WA, Amicus Curiae on behalf of Northwest Energy Coalition.

OWENS, J.

NATURE OF THE CASE

¶ 1 This case involves the State's authority to permit the construction and operation of wind turbines for energy production in the state without authorization from the county in which the turbines will be placed. Specifically, we consider both jurisdictional and substantive challenges arising from the governor's authority to site an energy facility that exclusively uses wind power under the energy facilities site locations act (EFSLA), chapter 80.50 RCW.

¶ 2 Initially, we must determine whether this court has jurisdiction to review a petition certified from superior court. Under EFSLA, a party may file a petition in Thurston County Superior Court for review of the governor's decision to approve an energy facility site. Upon receiving the petition, but before taking its own review, that court will certify the petition to this court if it determines that the petition meets certain criteria. The main question regarding jurisdiction is whether this procedure violates article IV of our state constitution by vesting direct review in this court without requiring initial review by the superior court.

¶ 3 We hold that the certification procedure under EFSLA confers appellate jurisdiction on this court and therefore does not violate the constitution. We accept review of the certified petitions from the superior court.

¶ 4 Having determined that this court has jurisdiction, we must address the various substantive challenges to EFSLA raised by Residents Opposed to Kittitas Turbines (ROKT), Kittitas County (County), and F. Steven Lathrop (collectively Petitioners). Petitioners argue that EFSLA does not authorize the governor to preempt county land use laws when siting a facility that exclusively uses wind power. Petitioners further argue that the State abused its authority in deciding whether to preempt county land use laws, that it violated the appearance of fairness doctrine, and that it failed to adequately consider an environmental impact statement. In addition, Petitioners urge this court to remand the case to the superior court for further fact finding on alleged procedural irregularities in the State's siting process. We reject all of Petitioners' claims and hold that the governor properly exercised her authority under EFSLA to approve the site certification for the wind energy project in this case.

FACTS

I. Statutory Procedures

¶ 5 EFSLA governs the location, construction, and operation conditions of energy facilities in Washington. It creates a process for determining energy facility locations in the state. An application to construct an energy facility requires site certification, a binding agreement between the applicant and the State that conditions approval of an energy facility location on the applicant's assured compliance with certain regulations related to the construction and operation of the facility. RCW 80.50.020(5). Site certification authorizes the applicant to construct and operate an energy facility in lieu of any other permit or document required by any other agency or subdivision. RCW 80.50.120(2), (3).

¶ 6 The legislature created the Energy Facility Site Evaluation Council (EFSEC) to administer the site certification process. RCW 80.50.030. EFSEC is a multiagency body comprised of representatives from various state agencies. RCW 80.50.030(3). A county in which an application has proposed an energy facility site also shall appoint a representative to EFSEC for consideration of that application. RCW 80.50.030(4). EFSEC receives and processes applications for site certification pursuant to its own adopted guidelines. RCW 80.50.040(2), (5), .071.

¶ 7 EFSLA expressly preempts energy facility certification decisions by other governmental entities. RCW 80.50.110(2). However, EFSEC must first hold a public hearing to determine whether a site certification application is consistent with the county land use plans and zoning laws. RCW 80.50.090(2). Furthermore, EFSEC must include conditions in a site certification to protect the interests of the local government or community affected by the proposed facility. RCW 80.50.100(1).

¶ 8 At the time it processed the application in this case, EFSEC had promulgated regulations governing how it would implement its preemption authority over local jurisdictions. Under these regulations, if EFSEC determined that an energy facility site was not consistent with local land use or zoning laws, then the applicant had to make all reasonable efforts to resolve noncompliance with the local jurisdiction. Former WAC 463-28-030(1) (2004), repealed by Wash. St. Reg. 07-21-035 (Nov. 9, 2007). EFSEC would stay its own proceedings during the period that the applicant sought compliance with the local jurisdiction. Former WAC 463-28-030(2). The applicant could request preemption by EFSEC after attempting to resolve noncompliance issues with the local jurisdiction. Former WAC 463-28-040 (1978), repealed by Wash. St. Reg. 07-21-035 (Nov. 9, 2007).

¶ 9 After processing an application, EFSEC must prepare a report for the governor recommending the disposition of the application within one year of receiving it. RCW 80.50.100(1). If EFSEC recommends that the governor approve the application, then it will provide a draft certification agreement to the governor. Id. The governor must either determine whether to approve or reject the draft certification or direct EFSEC to reconsider certain aspects of the draft certification. RCW 80.50.100(2)(a)-(c). If the governor directs reconsideration, EFSEC will revise the draft certification and resubmit the application to the governor. RCW 80.50.100(2)(c). The governor then must approve or reject the application. Id.

¶ 10 A party may file a petition for review of the governor's final decision in Thurston County Superior Court. RCW 80.50.140(1). That court will certify the petition to this court if it determines that the administrative record is complete and review can be made on the record, that the petition involves fundamental and urgent public interests, and that review by this court would likely be sought regardless of the decision in superior court. RCW 80.50.140(1)(a)-(d).

II. History of the Kittitas Valley Wind Power Project Application

¶ 11 In January 2003, Horizon Wind Energy, LLC (Horizon),¹ through its subsidiary Sagebrush Power Partners, LLC, filed an application with EFSEC for site certification of the Kittitas Valley Wind Power Project (KVWPP or Project). The original Project proposed the construction of up to 121 wind turbine generators located along Highway 97, roughly halfway between Cle Elum and Ellensburg in Kittitas County. Horizon allegedly chose this site because of the reliable wind resource and its proximity to several electrical transmission lines to which the turbines could connect.

¶ 12 The KVWPP consists of several turbine "strings" running along ridge tops over private and state owned land. Administrative Record (AR) at 52, 322 (map). Horizon obtained wind option agreements with all private landowners on whose property it would install turbines. It also negotiated a lease with the Department of Natural Resources (DNR) for use of state lands that consist of approximately one-fourth of the project site.

¶ 13 The Kittitas Board of County Commissioners (BOCC) appointed a representative to EFSEC for consideration of the Project. See RCW 80.50.030(4). The County also moved to intervene as an interested party in the adjudicative proceedings. EFSEC granted intervention status to the County, the Department of Community, Trade and Economic Development (CTED), ROKT, county resident Lathrop, and other parties before it held an adjudicative proceeding regarding the KVWPP application.

¶ 14 Lathrop filed a motion to disqualify DNR and CTED from participating as members of EFSEC based on the apparent interest that each department had in the KVWPP. Specifically, Lathrop alleged that CTED had conflicting...