Facts: In separate actions, petitioners Residents Opposed to Kittitas Turbines and Kittitas County sought judicial review of respondents State Energy Facility Site Evaluation Council and Governor Christine Gregoire’s final decision authorizing the preemption of Kittitas County laws to permit the construction and operation of wind turbines for energy production by Horizon Wind Energy, L.L.C. The petitioners alleged that the EFSEC could not preempt county laws regarding the siting of a wind powered energy facility, that EFSEC’s members violated the appearance of fairness doctrine, and that EFSEC’s decision to preempt Kittitas County laws, authorized by Governor Gregoire, was not supported by substantial evidence that Horizon did everything it could to comply with the county laws. EFSEC filed a motion to certify the petitions for review to the Supreme Court of Washington pursuant to Wash. Rev. Code §80.50.140. The Thurston County Superior Court certified the petitions, and the petitioners challenged the Supreme Court of Washington’s jurisdiction to review the petitions directly.

Questions: Does the Supreme Court of Washington have jurisdiction to review a petition certified from Superior Court of the Governor’s decision to approve an energy facility site?

Does the Governor have the 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?

Conclusion: Justice Madsen’s opinion for a unanimous Court held that according to the Energy Facilities Site Locations Act (EFSLA), Wash. Rev. Code chapter §80.50, the Thurston County Superior Court had the discretion to determine if the petition met certain criteria for certification to the Court. Further, the certification procedures do not violate Art. IV of the State Constitution by vesting direct review in the Supreme Court of Washington without requiring initial review by the Superior Court. Thus, the EFSLA, specifically Wash. Rev. Code §80.50.140, appropriately confers appellate jurisdiction on the Supreme Court of Washington. As to the second issue, the Court affirmed the Governor’s final decision to approve the site certification application, holding that the Governor properly exercised her authority under EFSLA. Also, the petitioners failed to provide substantial evidence that Horizon had no interest in finding compromise with Kittitas County. Rather, substantial evidence supports that EFSEC properly applied the standards of preemption according to Washington Admin. Code 463-28-040, and did not violate its preemption powers, or the appearance of fairness doctrine.

Docket No. 81332-9

Petitioner: Residents Opposed to Kittitas Turbines and F. Steven Lathrop

(Counsel: James C. Carmody and Jeffrey O. Slothower; Gregory L. Zempel and Neil A. Caulkins)

Respondent: State Energy Facility Site Evaluation Council

(Counsel: Robert M. McKenna, William B. Collins, Kyle J. Crews, Darrel L. Peeples, Fredrick D. Gentry, Timothy L. McMahan, Erin L. Anderson, Narda D. Pierce, and Susan E. Drummond)

Briefs:

Argument: Thursday, June 26, 2008 1:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, November 20th, 2008

Prevailing Party: State Energy Facility Site Evaluation Council (Respondent)

Vote: 9-0

Opinion: 165 Wn.2d 275 (2008)

Court: Alexander4 Court (2008-2009)

Brown
(Pro Tem)

Johnson

Madsen
(Majority)

Sanders

Chambers

Owens

Fairhurst

Johnson

Stephens