Fact-Checking the N&O Editorial Board

This morning, the Editorial Board of the News & Observer condemned a lawsuit brought by the Civitas Institute Center for Law and Freedom (CLF) on behalf of two individuals as “suspicious” and nothing more than “political interference.” Let’s read through the editorial and take at look at just how many basic facts the N&O got wrong:

The Amazon Wind Farm project had broad backing when proposed, including from Gov. Pat McCrory. The governor attended a groundbreaking in July, and the benefits of the farm will be considerable in local tax revenues and lease payments to landowners in Perquimans and Pasquotank counties in northeastern North Carolina. The online retailer Amazon is going to buy the electricity from the 105-turbine wind farm for a data center in Northern Virginia.

We’re glad the N&O agrees with us that the Iberdrola facility was initially proposed in 2014 while Pat McCrory was governor. The State’s primary argument is that the project being built now is, as a matter of law, the same project that was proposed in 2011, when Bev Purdue was Governor of North Carolina.

So here’s a clean, revenue-producing project of help to the state and its citizens. What’s not to like?

Nothing if you’re a farmer in a depressed part of the state, and nothing if you support clean energy and renewable energy projects. But if [you] subscribe to the knee-jerk philosophy that any government support for renewable energy is bad government and wind farms amount to a liberal conspiracy, well, then, you are strongly opposed.

The Civitas Institute generally opposes government support for any special interest. However, in this case, we are aware of no state taxpayer support for the Iberdrola facility.

And you may be a part of the Civitas Institute, one of several[ ]conservative groups associated with Raleigh’s Art Pope, a financial backer of conservative causes.

In this project – the first utility-scale wind farm in North Carolina and one of the first in the southeastern United States – the libertarian-leaning Civitas Institute has found perhaps the only industry that it thinks needs more regulation.

My clients do not seek more regulation. My clients seek fair application of the regulations on the books. The case is about Rule of Law, a fundamental principle in any free society. The core legal issue is whether a regulatory about-face by the Department of Environmental Quality was permissible under the Administrative Procedure Act.

Civitas is backing a Perquimans County couple who has filed suit against the state Department of Environmental Quality, raising doubts about the farm’s impact on property values, the risk it might pose to creatures of the air and the noise it might produce. The call for more regulatory review is a way for Civitas to try to raise objections to the farm, even though it, and perhaps other farms, might prove a tremendous economic resource for a part of the state that needs one.

Civitas is not raising concerns about properly values, risks to creatures of the air, etc. The legislature raised these concerns when it enacted a 2013 law requiring permitting of wind energy facilities. My clients seek nothing more than fair application of that law.

Plaintiffs Gigi Badawi and her husband, Stephen Owens, live less than a mile from the farm site.

Hey, they got one right! Also — take a moment to imagine what it would be like to live less than a mile from dozens of 499-foot-tall wind structures. Each one is taller than every building in Wake County except for PNC Tower.

They are asking for more study on noise and wildlife and also want public hearings. The couple and Civitas basically want to throw enough wrenches in the works to stop the project cold, and enough delay could do that.

The only statement even mildly corroborating this in the pleadings was on page 8 of Weyerhaeuser Company’s memorandum supporting summary judgment, where Weyerhaeuser indicated that “there is a significant risk that the Board of Directors could abandon its plans” for the project. If we assume that the N&O actually read the pleadings (which, with the exception of one reporter, they almost certainly didn’t) then the only conclusion is that the N&O supports a corporate board of directors’  attempt to influence the proper application of the law in the pursuit of profit. No evidence has been introduced as to the effect that the review process would actually have on the facility, and it is far from certain that the review would be a death knell to the project.

State officials, and remember these people are part of a Republican administration, say the project is ready to go and has gotten all the permits necessary for it to proceed.

Well, at first they claimed the project was subject to review. Then they claimed it wasn’t subject to review. And the question is whether the agency’s reversal on that point was permissible under the governing statutes and regulations.

Civitas is claiming that taxpayers are on the hook here, but that’s a woeful oversimplification of the issue and opponents know it.

Um, no, we aren’t? We are aware of no state tax subsidies to this project, and the taxpayer issue has not even been raised at the Office of Administrative Hearings. To the extent that we argued for taxpayer standing in a similar civil suit, that was only in support of the taxpayers’ interest in challenging unconstitutional applications of the law by DEQ, not some broader argument that taxpayers are on the hook for the wind facility as a whole.

This is a good, clean and well-reviewed project that needs to proceed on its schedule without political interference.

My clients are not arguing that the review process that has already occurred is insufficient for some moral or policy reason. They are arguing that the review process is not legally sufficient to meet the standard set by North Carolina law.

We have submitted a formal letter to the editor in response to the N&O‘s editorial. Stay tuned for an update on if/when that is printed.

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