Ohio Valley Jobs Alliance, Inc. v. Public Service Commission of West Virginia, et al.

Summary

The Supreme Court of Appeals of West Virginia affirmed the Public Service Commission's order granting ESC Brooke County Power I, LLC, a siting permit for a natural-gas-powered wholesale electric generating facility. The court held that the Commission should have required a hypothetical tax estimate under its siting regulations, but concluded that the applicant substantially complied with the Siting Rules as a whole and that the overwhelming evidence supported the permit. The court also upheld the exclusion of petitioners' expert testimony and rejected proposed EBITDA-based standards for evaluating whether the tax abatement offended the public interest.

Holdings

1. The Commission's siting rules mandated submission of a reasonable estimate of the taxes the applicant would have paid if it had operated the facility without tax-abatement agreements.
2. Although ESC Brooke did not submit the required hypothetical tax calculation and therefore did not substantially comply with that specific substantive requirement, it substantially complied with the Siting Rules as a whole, and the omission did not require reversal because the record contained overwhelming evidence supporting the permit.
3. The Commission did not err in excluding petitioners' expert testimony regarding the hypothetical tax calculation.
4. The Commission was not required to apply a clear-and-convincing-evidence standard or create a one-size-fits-all proportionality test comparing project earnings with PILOT payments.
5. Substantial evidence supported the Commission's findings that the project served the public interest and would have a substantial positive impact on the local and state economies and employment.

Questions Presented

1. Whether the Commission erred by granting a siting permit without requiring the applicant to submit the hypothetical estimate of taxes it would have paid absent the tax-abatement agreement.
2. Whether the applicant substantially complied with the Commission's siting rules despite not submitting the required hypothetical tax calculation.
3. Whether the Commission improperly excluded petitioners' expert testimony concerning the hypothetical tax analysis.
4. Whether the Commission should have applied a heightened clear-and-convincing-evidence standard or a proportionality test to determine whether the payment-in-lieu-of-taxes agreement offended the public interest.
5. Whether substantial evidence supported the Commission's findings that the project would serve the public interest and produce a substantial positive impact on the local and state economies and employment.

Disposition

affirmed