A member of the North Dakota Public Service Commission says she’s hoping to draft an order that could satisfy the concerns of the developer of a proposed wind farm in northern McLean County, as well as follow state law concerning light mitigation technology.
The order would concern the proposed Ruso wind farm. State law requires wind farms permitted after June 2016 to have light mitigating technology on the turbine towers, rather than the blinking red lights that are on all the time after dark. The current technology is “Aircraft Detection Lighting Systems,” which would only turn the lights on when an aircraft is approaching. But representatives of the Air Force object to that system at a wind farm close to the Minot Air Force Base. And that’s holding up the siting permit.
The company argues the Federal Aviation Administration has sole control over airspace – and that causes a contradiction with state law. Attorney Mollie Smith told the Commission the FAA has issued at “Determination of No Hazard” based on standard lighting systems, but not the proposed ALDS. And she said that trumps state law.
"Multiple federal courts have found that the Federal Aviation Act regulations pre-empt state law with respect to airspace management and air safety," Smith said. "That's based on the Supremacy Clause."
Smith also argued the statute is vague, with regard to lighting technology, and the Legislative history shows lawmakers had intended to have exceptions for these kinds of issues. But attorney Brian Johnson – acting for PSC advocacy staff – countered that the plain language of the law should prevail, even after looking at intent.
"If you look at that and apply it, and you look at the fact that they (legislators) considered these things and the law came out the way it did, that this is exactly what their intent was," Johnson said. "I believe if a court was going to look at it, that's the way they're going to look at it as well."
Commissioner Julie Fedorchak suggested compromise language that could potentially diffuse any conflict between the state law and the FAA.
"I just think a reasonable way forward is to include the condition in the permit that they will install the new technology when it is required by the FAA, and even requiring them to update us regularly," Fedorchak said. "It could be any other conditions that make it clear to the company that the minute there is a technology that can be used on this site, we expect it has got to be installed."
The Commission will consider the language at a later date.