Defining The Public Interest

On March 1, 2007, the Virginia State Corporation Commission (SCC) Hearing Examiner submitted a Report to the Commissioners wherein he made the following finding: “Construction and operation of the proposed facility (Highland New Wind Development) will not be contrary to the public interest.” In their December 20, 2007 Final Order, the Commissioners concurred.

Commonly accepted definitions of “the public interest” include “the common well-being,” “the general welfare,” “the common good,” and “the interests of the community as a whole.”

Seeking clarity regarding not only the legal definition of “the public interest,” but also its practical meaning when applied to real-world circumstances, should be of utmost importance to the Virginia State Corporation Commission (SCC) in their up-coming deliberations regarding Highland New Wind Development’s compliance with their Final Order.

One could argue that nothing more nor less than “the public interest” is essentially what’s on trial.

Very Important Questions

Will the SCC consider “the public interest” as somewhat more multi-dimensional than “the goal of advancement of competition and economic development in the Commonwealth”?

Will the SCC recognize that this broader view of “the public interest” has never been fully considered, much less fully protected in this particular compliance process?

Will the SCC acknowledge the fact that, perhaps unique to their experience in dealing with electric utilities, Highland New Wind has simply refused to abide by the conditions set forth in their Final Order?

Will the SCC do the right thing and withdraw their approval until such time as Highland New Wind proves compliance with those conditions? (Proof of compliance being defined as mitigatory action satisfactory to the consulting regulatory agencies named in their Final Order, such as the Department of Historic Resources, the Department of Environmental Quality, the Department of the Interior, etc.)

Or, will the SCC define “the public interest” and their role in safeguarding it as narrowly as the law allows?

A Disfunctional Process

The SCC is not, essentially, an investigative or enforcement body. The SCC relies upon the quality of information presented by the utility seeking approval and the quality of evaluation provided by the consulting regulatory agencies charged with reviewing them. It would seem that the SCC is predisposed, both by influence of Virginia Code and past experience, to presume that all parties are acting in good faith.

For example, the December 2007 Final Order accepts the “validity” of the Conditional Use Permit issued by the Highland County Board of Supervisors in regards to “property values, tourism, viewshed, height restrictions, setbacks, lighting, color of structures, fencing, security measures, erosion and sediment control, signage, access roads, and decommissioning” eventhough such permit was issued without benefit of a site plan.

The Final Order lists six specific Department of Environmental Quality recommendations as “a requirement of our approval herein,” yet includes no provision for verifying that Highland New Wind has met them.

Read the Final OrderThe first recommendation, “Submit Final Site Plan to Reviewing Agencies” (page 8) wasn’t met until August, 2009.

The second recommendation, “Coordinate with DHR for guidance…” is the matter currently at trial.

And three of the four remaining recommendations (page 9) are under intense public scrutiny pending direct agency action (by the Corps of Engineers, the Department of Environmental Quality, the Department of Conservation and Recreation, the Department of Game and Inland Fisheries, the Department of Interior, or the US Fish and Wildlife Service) to insure Highland New Wind’s compliance.

If the agencies named do not take action to insure compliance with their own recommendations and thus the protection of “the public interest,” then the people are left no recourse but to take action to preserve our common inheritance.

In the case of Highland New Wind, the SCC approval process has been based on a presumption of good faith that has thus far been proven erroneous.

The SCC doesn’t seem particularly designed to handle such unpleasantness.

Thus the most important question of all: Will the SCC interpret the Virginia Code in such a way that it denies or confirms a multi-dimensional commitment to “the public interest?”

Will the SCC dare to address a problem like Highland New Wind? Or will the Commission deny such problems exist?

A legal definition of “the public interest” rests on their decision.

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“Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for profit, honor, or private interest of any one man, family, or class of men; therefore, the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it.”
John Adams, Thoughts on Government, 1776