Some Lawmakers Considering a Special Session After PSC Turned Down a Wind Farm Permit

Last week the Public Service Commission turned down a siting permit for a large (23,000 acres, 76 turbines) wind farm project in Burke County.

NextEra, the company behind the project, had pushed for a permit despite opposition from the U.S. Fish and Wildlife Service and the North Dakota Game and Fish Department who argued that the location would be very bad for wildlife.

For birds, specifically.

This is not something the PSC does often. In fact, the current members of the commission couldn’t think of the last time a siting permit was turned down, mostly because concerns about a particular project are advanced well before the question of a permit reaches a decision point.

I argued that the wind industry, enamored with their status as a political darling, fell victim to hubris. But some in the Legislature are blaming the PSC. Sources tell me there is some interest in perhaps removing some of the PSC’s siting authority, or moving it to another state department such as the Agriculture Commissioner.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]”Brandenburg talked to me about it yesterday,” Pollert told me in a phone conversation today. “We talked about the decision of the PSC…just some concerns he has it with it.”[/mks_pullquote]

House Majority Leader Chet Pollert (R-Carrington) told me he has been approached about the possibility of a special session by state Rep. Mike Brandenburg, a Republican from Edgeley and outspoken advocate for the wind industry.

“Brandenburg talked to me about it yesterday,” Pollert said during a phone conversation today. “We talked about the decision of the PSC…just some concerns he has it with it.”

“He’s concerned it’s turning on the wind industry,” Pollert added, referring to the PSC.

“I’m in a discovery phase right now. I’m not calling for one,” he said of whether or not a special session might happen.

Rep. Brandenburg also has not responded to phone calls or an email message.

The state constitution gives lawmakers 80 session days every two years, but lawmakers are generally free to use those days as they see fit. They used 76 days earlier this year during their regular session. They have the authority to call themselves back into session to use those remaining four days.

Alternatively Governor Doug Burgum can call them back into session. If he did those days wouldn’t count against the 80 day limit.

I spoke with Burgum spokesman Mike Nowatzki who said he wasn’t aware of the governor’s office being approached about a special session concerning this issue but that he’d check on it.

Public Service Commissioners Brian Kroshus and Randy Christmann did not immediately return phones calls requesting comment.

The third member of the PSC, Julie Fedorchak, told me she had heard talk of moving the commission’s siting authority to the Industrial Commisison which is made up of Governor Doug Burgum, Attorney General Wayne Stenehjem, and Agriculture Commissioner Doug Goehring.

“I’m assuming if he’s seeking a special session it’s to change the law,” Fedorchak said of Brandenburg’s push. “The legislature discussed this issue quite thoroughly this year and considered a number of different bills. They made their policy decision and we will be implementing that starting in July. If policy makers think this issue if of such urgency that they need a special session to reconsider it then they can certainly do so. The last legislature didn’t seem to have much appetite for Rep. Brandenburg’s agenda to soften the siting law and overview process.”

“For what it’s worth, the feedback we have received from the public since the Burke decision is about 3 to 1 in favor of our decision. That’s a small sampling but interesting for what it’s worth. People typically tend to respond more when they are mad not happy with a decision,” she added.

I wonder how much appetite lawmakers are going to have for a legislative rebuke to an executive branch office. Earlier this year they passed legislation, inserted into a budget bill in the closing days of their session, which put the state Auditor on a leash held by a legislative committee when it comes to performance audits. They’ve received a lot of criticism for that move (from myself, among others), and there’s now a campaign to refer that legislation to the ballot for a vote.

Do lawmakers want to invite more controversy by going to bat against the PSC for the wind industry?

It’s worth remembering that there is an expiration date at the end of this year for a massive federal subsidy. Wind farm projects begun before the deadline can qualify for the subsidy for the next decade. Experts expect the construction rate of wind farms to plummet once the expiration date hits.

That may explain Brandenburg’s haste in this matter. The legislature won’t meet again for a regular session until 2021, and NextEra probably can’t break ground at a new site before the end of the year.