Judge shields some utility documents from public view in fight over transmission line

RICHMOND — A judge has granted a protective order to an electric utility that sought to prevent the public from seeing a trove of documents requested for review by Berea College. 

Madison Circuit Judge Kristin Clouse heard arguments from the two sides last week before deciding that the Winchester-based East Kentucky Power Cooperative (EKPC) should have the right to protect information about the locations of certain substations and transmission lines, their capacities, the annual load on the substation currently serving the Big Hill region, and other details about how the substation fits into the power grid. 

Clouse did not grant protection for other questions such as what steps the utility is taking to protect the view shed at the college’s Windswept property and whether and when there will be an environmental assessment pursuant to federal law.

The documents had been requested by the college in a discovery motion as the two entities battle over whether EKPC has the right to take about a mile of the college’s forest land to build the 8.5 mile long transmission line. The power co-op  filed a condemnation suit against the college earlier this year.

The college fears that the line will mar the Pinnacles’ viewshed, among other concerns. The Pinnacles is a popular destination for hikers who can traverse a network of trails in the Berea College Forest. 

The college’s legal team has said the ultimate goal is for EKPC to demonstrate conclusively that the transmission line is necessary. The 69 kilovolt Big Hill Line does not meet the state Public Service Commission’s threshold of 138 kilovolts for EKPC to be required to file for a certificate of public convenience and necessity with the PSC.

The utility has maintained throughout that the line is necessary to provide reliable power service to the electric co-op members in the region. 

The judge today also granted permission to Ryan Turner, the lawyer for multiple other parties who own property that will be impacted by the transmission line’s construction, to file a motion that the utility must prove it has demonstrated need before it can claim right of way to his clients’ respective properties. The motion will be held in abeyance until after a ruling comes down in the case between the college and EKPC. 

Clouse instructed EKPC to redraft its motion for a protective order to reflect the pared down number of items she granted. All parties, including Turner, were instructed to return to Clouse’s court on Oct. 16 when she will decide on any further actions. 

Meanwhile, EKPC is expected to share all requested documents with Berea College, as part of the discovery phase of the litigation. Berea College is expected to keep the documents confidential. Clouse agreed with the college that if during the document review, the college finds documents it wishes to make public, or if it is discovered that any of the information has already been made public, she would entertain another motion to remove the protective order on a case by case basis. 

Although the college suggested to Clouse that discovery might extend the time for a hearing until next April, the judge said that was too long for a trial such as this, where the line is already in construction. She recommended a hearing on whether EKPC has the right to take the requested parcel of the college’s forest land, be held no later than this coming January.

This story is republished from The Edge, based in Berea.