A Florida-based energy company continues to put up wind turbines in western Oklahoma, despite a request from the state to 'cease and desist.'
The construction would seem to violate state law, and yet it's not at all clear if the law can be enforced, at least in this particular case.
Last Friday, the Chairman of the Oklahoma Strategic Military Planning Commission, Mike Cooper, and the Director of the Oklahoma Aeronautics Commission, Victor Bird, jointly sent a letter to NextEra Energy, informing company officials that they were in violation of a new state law requiring that a wind project have either FAA or Defense Department approval before construction may begin. The law went into effect May 2, 2018.
The letter made specific reference to nearly two dozen turbines that NextEra had erected in southwest Canadian County, none of which had yet received a 'no hazard' declaration from the FAA or were covered by any existing DoD-approved mitigation plan.
As a result, Cooper and Byrd requested that NextEra stop all construction on its Minco IV wind project, until such approvals were in place and posted with the Corporation Commission, as also required by the new law.
In spite of the letter, NextEra has continued building its turbines. Hinton-area residents have sent News 9 numerous photographs documenting the construction, and both Byrd and Cooper confirm that they have similar evidence of the company's actions.
"It's very obvious that they are constructing without the necessary approvals," Cooper stated in an interview Thursday afternoon.
And yet, it's not at all clear that the state can, or will, take any enforcement action against NextEra.
In response to a request last week from the Attorney General's Utility Regulation Unit to "investigate these serious allegations and to bring an enforcement action against NextEra for any violations discovered," the Corporation Commission's Public Utility Division (PUD) said that the facility is in compliance with filing mandates, as the project was filed properly under the existing law.
In a letter to Chief Ass’t AG Jared Haines, the OCC's Managing Deputy General Counsel, Natasha Scott, points out that NextEra originally filed plans for its Minco IV and V wind projects in 2016, meaning it pre-dates the new law.
"To date," Scott's letter reads, "NextEra has complied with the statutory requirements [in place prior to the recent amendments], and PUD will therefore not initiate enforcement action with regard to these requirements."
Scott acknowledges the Legislature's recent amendments, but says they postdate "the 2016 commencement of the Minco IV and Minco V projects."
In March of this year, NextEra filed amended plans for the projects with the FAA and, critics point out, it is the turbines in those amended plans that are now being built, not those that were filed in 2016. The FAA issued 'no hazard' declarations for each of the turbines in the 2016 filing, but has not yet made determinations for the 2018-filed turbines, which are. in most cases, taller and in slightly different locations.
"We need to do everything that's legally possible," said Cooper, "to ensure that this state legislation, the new law, is followed, and that this project is stopped, until we get the right answer."
The primary goal of the legislation, Cooper points out, is not to stymie the wind industry, but simply to protect a very vital military asset -- air space for low-level fighter jet training.
The fate of the two NextEra projects may come down to the definition of the word 'construction.'
The new law states: "After the effective date of this act, construction or operation of a proposed wind energy facility or proposed wind energy facility expansion shall not encroach upon or otherwise have a significant adverse impact on the mission, training or operations of any military installation or branch of military as determined by the Military Aviation and Installation Assurance Siting Clearinghouse and the Federal Aviation Administration...No wind energy facility may be constructed or expanded unless an active Determination of No Hazard from the Federal Aviation Administration or an approved mitigation plan is obtained from the Military Aviation and Installation Assurance Siting Clearinghouse."
While the planning for the turbines clearly occurred prior to the effective date of the new law, the actual erection of the turbines didn't begin until after it went into effect. This is why many people who live in the area where the turbines are going up feel it's obvious that the construction violates the law.
But officials at the Corporation Commission say, as far as PUD is concerned, 'construction' actually commences with the filing of construction plans. And, based on that definition, the NextEra projects would not fall under the new law.
A spokesperson with the Attorney General's office says the Corporation Commission's PUD remains the proper place for this issue, noting that, according to the Counsel's letter, PUD "continues to review the allegations." The official says the AG will await the completion of that review before deciding whether to get involved in any other capacity.
News 9 has reached out to NextEra Energy multiple times. The company has not responded with any comment.