Time to Change the Law?

The Hearing Examiner for the Virginia State Corporation Commission (SCC) is considering the briefs filed by the Virginia Department of Historic Resources (DHR), Highland New Wind Development (HNWD) and the SCC Staff, on January 4. We await his ruling.

We at Brightside hold out hope that the Hearing Examiner rules in favor of the DHR. We sincerely believe he should rule in favor of the argument that if the SCC'S Final Order is to be taken seriously, then the Final Order intended for the defendant, HNWD, to not only study the impact of their facility on Camp Allegheny, but to take action to mitigate that impact. If the Hearing Examiner makes such a ruling, it will set a fine precedent, one that may well assist The People of Virginia in opposing the many wind applications the SCC will consider in the coming months.

The sad fact remains that such a ruling is highly unlikely to help preserve Camp Allegheny.

Why? Well, our opinion is it all comes down to politics, the limitations of law, and very human fallibility.

The SCC, just like the Highland County Board of Supervisors (BOS) enters the fray with a forgone, feel-good conclusion: wind power is good. Wind power is green. Wind power frees us from foreign oil and creates much-needed jobs in poor communities.

Unfortunately, this belief is supported, not by facts, but by industry advertisements.

A commitment to industrial wind is not justified by data or deliverables, but by promises. Promises for which proof is never required. Why? Because everyone wants to believe. We all want what the industry says to be true. What's not to like?

Nevertheless, it is the SCC’s job to evaluate every public utility application to determine whether the public good outweighs the environmental harm. Wishful thinking is not included in the statute.

However, such consideration is strictly constrained by Virginia law: Issues previously considered and resolved by the county wherein the application originates cannot be reconsidered by the SCC.

Thus, in the case of HNWD, the SCC General Counsel is not concerned with the quality or accuracy of Highland County’s evaluation of impact to Camp Allegheny—that’s not his job, under the law—he’s merely concerned with the fact that Highland County said they considered it to their satisfaction. Such tacit approval means, under a strict interpretation of Virginia law, that the SCC cannot reopen the issue.

The SCC General Counsel, representing the Staff, has consistently, since September 23, 2009, insisted that the question of visual impact on Camp Allegheny is settled law, codified when the Highland County BOS granted a Conditional Use Permit to HNWD back in 2005. Given the General Counsel’s strict adherence to this point of law, it is highly unlikely that the Staff will concur with the Hearing Examiner, in the off-chance he rules in favor of DHR.

So, where does this leave us?

Well, we think that any case wherein adherence to the letter of the law damages its spirit is cause for re-evaluation of not only the law’s purpose, but also its practical implementation.

The SCC relies upon the good faith of the county boards that pre-approve utilities.

But what are the standards of accountability?

Is the SCC concerned that data from the counties might be tainted by the influences of big advertising, wishful thinking, and economic desperation?

What a county board approves today, as a quick fix based on promises of short-term jobs and tax revenues, may not serve the county or the state, in the long term.

No, the SCC should not re-regulate the counties. We are not suggesting duplication of governance.

We are, however, suggesting that the SCC hold Highland County BOS and all the counties henceforth, to a stricter standard of proof-of-benefit. The SCC should demand quantifiable proof that a given utility will not negatively impact viewshed, property values, cultural attachment, tourism, etc. and that it will deliver gains in jobs and tax revenue. Proof should be required by the county and thus by the SCC.

The mere statement by a county board of three elected individuals that there will be no negative impacts is not enough. Such a statement is made under no burden of proof….and great burden of local politics.

The SCC should base the issuance of multi-million dollar permits on better data.
And if the law won’t allow it, the law should be changed.