The U.S. Tenth Circuit Court of Appeals on Oct. 22 rejected a case brought by the Northern Laramie Range Alliance over regulatory approvals for two adjacent wind energy projects of Wasatch Wind Intermountain LLC.
Wasatch was able to sell the wind energy by certifying both projects as qualifying facilities (QFs) under Federal Energy Regulatory Commission rules. These efforts drew the ire of the Northern Laramie Range Alliance, which objected to Wasatch’s certification. FERC last year rejected the objections, and the Alliance in July 2012 appealed FERC’s decision to the court.
“We can entertain the appeal only if the Alliance has established standing, which requires traceability and redressability,” said the Oct. 22 ruling. “For both, the Alliance relies on increases in electricity rates. But the wind projects have not been completed, Wasatch has not found a buyer for the anticipated wind power, and we do not know whether sales of wind energy would increase or decrease a utility’s costs. Even beyond these uncertainties, electricity rates depend on the actions of third parties, those of the utility and the state regulatory commission. With the multitude of uncertainties surrounding the effect of Wasatch’s certification or decertification on electricity rates, we conclude that the Alliance has not shown either traceability or redressability. We therefore dismiss the petition for lack of standing.”
Many Alliance members buy their electricity from Rocky Mountain Power, which had two contracts with Wasatch. One contract terminated before the appeal, and the other contract ended during the appeal. Following termination of the contracts, Wasatch has yet to complete the facilities or find a buyer for the wind energy, the court noted.
The Alliance based standing solely on the belief that the Wyoming Public Service Commission has approved a rate increase as a result of the certification that Wasatch had met the FERC criteria. But that certification does not affect electricity rates, the court said.
The projects in question have 49.5 MW of capacity apiece
The appeal had to do with project companies Pioneer Wind Park 1 LLC and Pioneer Wind Park II LLC. The court noted that the companies were able to qualify these projects for special treatment as small power QFs that is limited to single projects of up to 80 MW in size, by locating these two projects more than a mile apart. These projects are part of a broader Pioneer Wind Park project of a planned 100 MW to 400 MW in size.
The Alliance said the two projects in question had been one 100-MW project, but had been split into two parts of almost 50 MW to get in under the 80-MW cap and get to the top of the line in a crowded transmission interconnection queue at Rocky Mountain Power (RMP). “[I]f Wasatch self-certified the Pioneer Project as two QFs, each of less than 50 MW, it would be able to gain grid access ahead of all others in the Queue and take advantage of special ‘wind proxy’ pricing rather than competing on a level playing field with the other sources of energy available to RMP,” said a November 2012 Alliance brief in this case.
The projects are sited in Converse County, Wyo. They will have approximately 49.5 MW in power production capacity each, and will be sited about 2.5 miles apart. In 2010, the developer self-certified each wind project as a small power production QF under the Public Utility Regulatory Policies Act of 1978.