In separate cases Aug. 26, the Intermediate Court of Appeals of West Virginia dismissed two appeals to the Ridgeline Power Plant and Data Center Project in Tucker and Grant Counties.
The day after the dismissals, Fundamental Data issued the following statement through its public relations representative, Andrea Khoury of Khoury Public Relations & Media Group, on the cases.
“We respect the Court’s ruling and the judicial process established by West Virginia law,” said Casey Chapman, Responsible Official for Fundamental Data. “We will continue to address issues in the proper forum, comply with the requirements that apply, and work with the State in good faith as Ridgeline advances.”
In a case brought before the Court by Tucker United, the West Virginia Highlands Conservancy and the Sierra Club, Case No. 26-ICA-92, a Feb. 5 order of the West Virginia Air Quality Board that upheld the permit was appealed.
In that particular case, the Court ruled the dispute fell within an exemption to general law, directing post-June 2022 administrative appeals to the ICA. Given the applicable provision, the challenge to an order denying, approving or modifying an air permit must be filed in the State Supreme Court within 30 days unless all parties agree to proceed in Kanawha Circuit Court.
The order states that the parties did not agree to proceed in circuit court. The order goes on to explain that the dismissal is a result of a jurisdictional dispute, rather than from the petitioners’ failure to act promptly.
The other case, 25-ICA-391, was brought before the Court by Tucker United, Friends of the Blackwater and the West Virginia Highlands Conservancy. The case challenged the Air Quality Board’s handling of the draft permit and Fundamental Data’s claims that materials were protected from disclosure as confidential business information under statute.
In the Court’s ruling on this matter, it was found that the Court lacked jurisdiction over the matter, as well. However, unlike the previous case, the Court said the statutory exception directed the challenge to the circuit court in the county where the alleged air pollution originated or to the Kanawha Circuit Court if all parties agree. As was the case in the previous case, all parties did not consent to a Kanawha County proceeding, the order states.
The Court also concluded the appeal was a moot point. The petitioners sought to vacate an Air Quality Board’s Order on a draft permit and obtain additional evidentiary proceedings for a case in which a final permit had already been issued and an appeal had been filed in the other case.
As for whether the information was properly treated as trade secret or confidential business information, as well as the merits of the permit approval, the court concluded, have been preserved for review with the final permit appeal.
Both cases had seen delays following the voluntary recusal of Chief ICA Judge Daniel W. Greear in April and Judge Charles O. Lorensen in March of this year. The recusals stemmed from concerns raised over family and professional ties by the jurists to Fundamental Data and attorneys representing the company. The cases were temporarily reassigned to Circuit Court Judges Shawn D. Nines and Gregory L. Howard, Jr.
