We Need New Siting Rules for Exempt Wholesale

The West Virginia Environmental Council (WVEC) government affairs committee re-aligned the WVEC lobbying priorities to be pursued in the 2017 legislature, which begins February 8. The re-aligned priorities make upcoming efforts more consistent with the energies and the strengths of the lobby team.

The West Virginia Highlands Conservancy has proposed legislation for Exempt Wholesale Generator facilities (EWGs) Siting Rules Review and Revision, which was accepted by WVEC as a Tier ,1 2017 legislative priority.  Exempt Wholesale Generators are facilities that produce and sell wholesale electricity but do not sell directly to consumers.  In West Virginia, these are mostly industrial scale wind farms.  For information on how they work, see the story in the December, 2015, issue of The Highlands Voice. https://www.wvhighlands.org/highlands-voice-mag/ .

Requiring the Public Service Commission of West Virginia (PSC) to review the current EWG siting application rules and PSC procedures, approved eleven plus years ago, continues to fulfill the PSC Mission and the provisions of its Vision Statement for the benefit of all West Virginians.

Eleven years of experience has highlighted issues that must be addressed by the PSC in revised application rules for the siting of EWGs in West Virginia. Our proposed revisions rest upon several assumptions, each of which reflects the public interest and the cause of justice:

  • The PSC possesses relevant expertise in the regulation of electric utilities and the facilities traditionally operated by those utilities. Its regulation of exempt wholesale generators under federal should focus upon those same aspects, and it should not be placed in the precarious position of foretelling or divining the findings and conclusions of agencies charged with the protection of water resources, wildlife, and the like.
  • Notwithstanding the existence of certain public notice requirements set forth in connection with various other regulatory processes, an exempt wholesale generator should not be permitted to proceed behind the scenes in obtaining regulatory approvals, and in no event should it be permitted to obtain such approvals and permits after the conclusion of the evidentiary hearing in a siting certificate case before the PSC.
  • Intervenors in cases before the PSC, particularly EWG siting certificate cases, should not carry the burden of proof in any aspect of the case. It should always be the burden of the energy developer, and not that of private citizens, to prove the absence of impacts or the adequate mitigation of such impacts. We are aware that intervenors have spent hundreds of thousands of dollars in cases before the PSC and were basically ignored.
  • Proceedings before the Commission under West Virginia Code § 24-2-11c should be accompanied by a policy encouraging greater disclosure of information about an applicant and its proposed project, rather than less disclosure.
  • Impacts from an electric generating facility should be imposed within reasonable geographic proximity to where the majority of the benefits are incurred. West Virginia citizens should not absorb further externalities of expanded electric generation when the state already generates twice as much electrical energy as its residents consume, and there is no indication that this gap in generation and native consumption will narrow at any time in the foreseeable future.


We can conceive of alternate ways of modifying the siting certificate statute, particularly to impose additional affirmative duties upon the PSC to consult directly with other federal and state governmental agencies, which the PSC presently is not required to do, nor does it do.  In practice, the result may be actually to reduce the burdens on the PSC in such cases. We are providing a list of federal and West Virginia state agencies that must be consulted in reviewing an application. The list is self instructive.

In the interest of providing for less deference to entities not legitimately invested in our state and its future and in the interest of granting greater weight to the rights of the citizens of West Virginia, we are hoping that that our proposed legislation providing a mandatory PSC review of the current rules is introduced during this legislative session.