Delaware's Supreme Court rejects a challenge to a piece of US Wind project in the First State.
The state’s highest court affirms a March Court of Chancery decision upholding a state law that paved the way for a planned electrical substation that would help bring power generated by US Wind’s wind farm onshore.
After Sussex County denied a permit needed to build the substation in 2024, state lawmakers passed a bill last summer requiring counties to approve electrical substations permits that meet certain criteria, including this one for US Wind.
Sussex County and Fenwick Island challenged the legislature’s power to do that, but this week the Supreme Court agreed with the Court of Chancery it can.
Jane Brady is one of the attorneys representing Sussex and Fenwick Island.
“I’m disappointed that we weren't able to convince the court to look beyond the delegation of authority to the exercise of that authority." she said.
Fenwick and Sussex specifically argued that the State deciding to make zoning decisions is “not legislative in nature”- legislative power, they argue, is the only authority given the State legislature.
“The authority given in the constitution is to give the state the ability to write the laws, rules and regulations about zoning not to make a zoning determination or grant a permit [themselves]. ” said Brady.
The Supreme Court backed the argument that the state gives counties the authority to make zoning decisions and can revoke that authority at any time.
The Delaware Supreme Court also affirmed Chacery Court's ruling that the law does not violate separation of powers and the bill was clear that it pertained to regulating public utilities. The Supreme Court also rejected a common law "due process" claim
Brady says that she does not see any path to further challenge the law or substation project,
“Justice Randy Holland, who served on the court a very long time, once said: ‘We’re not final because we’re right, we’re right because we’re final.’ There is no appeal beyond the state Supreme Court on this matter. The court has ruled- and they have authority over the interpretation of the Delaware constitution and statute.” she said.
While the path for it to move forward is clear, the US Wind project still faces hurdles, according to Brady.
There is still litigation by Ocean City, Maryland against the wind farm itself. And in Delaware, three permit requests are pending for additional infrastructure related to the project proposed for Sussex County.
