Renewable Energy Facility Siting Legislation on the Right Track

Recognizing the broad impact of its decision to all energy facilities, including wind energy facilities that "opt in" to the Energy Facility Site Evaluation Council (EFSEC), the Court said:

"The stakes in this case are high, pitting the jurisdiction of a multidepartment state council against county jurisdiction over siting energy facilities. The winner gets control over the siting of energy facilities."

In a unanimous 9-0 ruling, the Court affirmed the primacy of EFSEC's authority to process applications for site certification of all energy facilities. The Court upheld Governor Christine Gregoire's approval of Horizon Wind Energy's Kittitas Valley Wind Power Project (KVWPP), a 65-turbine, 130-MW project proposed on the windy slopes of the Cascade Mountains in central Washington that, upon completion, will generate clean renewable power for over 30,000 homes each year.

The case was called Residents Opposed to Kittitas Turbines v. Energy Facility Site Evaluation Council, No. 81332-9 (Wash. Nov. 20, 2008). The two of us and Olympia attorney Darrel Peeples led the permitting effort and subsequent litigation from the inception of the KVWPP.

The case had been closely watched not only by wind industry stakeholders but by the broader energy industry as well, as the challenge to the Energy Facilities Site Locations Act (EFSLA), ch. 80.50 RCW, sought to invalidate the entire statutory siting framework and remove renewable energy facilities from EFSEC's jurisdiction.

One-stop State Permitting Processes and Local Land-use Controls

EFSLA dates back to the early 1970s. It created a one-stop process whereby EFSEC reviews an energy facility through an adjudicative hearing and makes a recommendation to the Governor for approval or denial. The Governor's decision is final and subject to review by the courts. The legislation was intended to establish a predictable process for reviewing energy development proposals while recognizing the inherent difficulty in siting such facilities. Taking into consideration the public's need for reliable, abundant and affordable energy, the Washington Legislature appropriated the siting function to the state by "preempt[ing] the regulation and certification of the location, construction, and operational conditions of certification of the energy facilities included under RCW 80.50.060 as now or hereafter amended." RCW 80.50.110(2).

In Washington, any renewable energy facility developer can seek local approval for a project without involving EFSEC or can seek approval through EFSEC. Under the law applicable to the KVWPP, an applicant is required to make good-faith efforts to achieve consistency with local land use plans and zoning ordinances. In the event efforts to achieve local land use consistency are denied, the developer can seek preemption by EFSEC.

In the KVWPP case, Kittitas County refused to acknowledge the preemptive authority of the state, and required the applicant to submit to a duplicative local permit process, ostensibly adopted under the County's authority to regulate land uses under the statewide land use law (the Growth Management Act). The County reviewed and denied the KVWPP, contending that its denial prevailed over the state's process to review and approve the project. After the County's denial, the project developer sought and obtained preemption from EFSEC, and secured approval by the Governor.

State's Preemptive Authority To Site Energy Facilities Affirmed

In upholding the state's authority to approve energy facility siting, the Court confirmed that neither the statewide land use planning law nor local land use laws adopted pursuant to the Growth Management Act supersede or repeal EFSEC's preemption powers. This holding is highly significant for energy facility policy and planning, as it ensures a coordinated, expedited process intended to ensure abundant and affordable power, better enabling the state to achieve its goals to reduce CO₂ emissions and implement its renewable portfolio standard. The Court confirmed the Legislature's clear intent to include renewable energy as an energy resource subject to the statewide energy facility siting laws.

Important Precedent for the Energy Industry

Finally, and of potentially significant interest to the industry as a whole, the Court acknowledged the aesthetic impacts of wind energy generation facilities, and confirmed the sufficiency of the analytical basis and scope of mitigation imposed through a mandatory aesthetic setback of four times the turbine height, measured to the full vertical extent of the turbine blade. The Court confirmed that the "reasonably thorough discussion" of the aesthetic impacts contained in the Environmental Impact Statement and elsewhere in the decision record was adequate to uphold this mitigation measure, and denied the opposition's demands that the applicant disclose information to show why a greatly reduced project would not be "economically viable."

Without question, renewable energy facilities, like other energy facilities including transmission projects, are facing increasing opposition. As existing and evolving local, state and national policy encourages increased investment in the nation's energy infrastructure, clear direction from the courts resolving jurisdictional conflicts and "setting the bar" for reasonable mitigation is crucial. The legal aspects of renewable energy siting are complex and diverse and vary state by state. However, the Washington Supreme Court's KVWPP decision provides a model to resolve jurisdictional conflicts, and should help to clear some of the obstacles that often stand in the way of new renewable energy development.

Tim McMahan is a partner with Stoel Rives. He practices in the areas of land use, real estate development, environmental, and municipal law. He has offices in Portland, Oregon and Vancouver, Washington.

Erin Anderson practices as Of Counsel in the Natural Resources and Land Use practice group at Stoel Rives.