New court filing questions agreements made before plant approval
By Heather Michon
A new filing in a lawsuit brought by the Southern Environmental Law Center (SELC) on behalf of six Fluvanna County residents alleges that county officials were warned about potential legal problems with Tenaska’s financial commitments before the Board of Supervisors approved a special use permit for construction of Expedition Generation.
In an Oct. 15 filing in Fluvanna County Circuit Court, the plaintiffs seek permission to amend their lawsuit against the county and Expedition Generation Holdings LLC, the company behind the proposed 1,540-megawatt natural gas-powered plant.
The proposed amended complaint cites internal correspondence and reviews by county advisers questioning whether the county could legally include millions of dollars in financial commitments as conditions of a special use permit (SUP).
Some of those commitments were later moved into a separate legal agreement called a Declaration of Restrictive Covenants.
Spencer Gall, a senior attorney with SELC, said the documents, obtained during discovery, reinforced the argument that the payments and the permit were directly connected.
“The internal emails confirm what was already obvious to the public: the permit and the cash payments were a package deal,” he said in an email to the Review.
The plaintiffs contend the arrangement violated Virginia land-use laws and ask the court to invalidate the SUP supervisors approved on Mar. 18.
Concerns raised
The 76-page proposed amended complaint describes how two firms hired by the county raised concerns about the financial commitments in the weeks leading up to the Mar. 18 vote.
As county officials worked to finalize the SUP conditions in early 2026, Tenaska proposed several major financial commitments. Among them was a $5 million “Good Neighbor Fund” that would pay qualifying homeowners within two miles of either the existing or proposed plant between $10,000 and $30,000 over four years, depending on their proximity to the site.
Tenaska also offered funding for public safety, including support for the Sheriff’s Office and construction of a fire and emergency medical services station in the Kidds Store area. Initially proposed at $5 million, the commitment increased to $7 million during the Mar. 18 meeting when supervisors agreed to redirect $2 million originally proposed for residential solar assistance.
The commitments also included making some of the plant’s wastewater discharge available to the county at no charge, although the county would be responsible for the costs of collecting, processing and using the water.
The law firm Sands Anderson questioned as early as Jan. 7 whether the proposed Good Neighbor Fund was sufficiently connected to the impacts of the project. It also recommended additional documentation establishing the connection between the public safety funding and the plant.
A second consulting firm, the Berkley Group, raised similar concerns, warning that the proposed conditions could “create legal and procedural risk because they fall outside the traditional scope of zoning authority.”
On Feb. 2, an attorney for Tenaska sent county staff a revised set of SUP conditions, explaining that, based on advice from Sands Anderson and subsequent discussions, the community benefit and first responder provisions had been removed from the proposed conditions and placed in a Declaration of Restrictive Covenants.
Disputed distinction
The central legal question is whether the financial commitments contained in the restrictive covenants were genuinely separate from the SUP or effectively served as additional conditions of its approval.
During the Mar. 18 Board of Supervisors meeting, after the SUP vote, County Attorney Dan Whitten explained that the financial commitments could not be included in the SUP conditions because they lacked a sufficiently close connection to the proposed land use. He described the use of restrictive covenants for these commitments as “a new mechanism in Virginia.”
Tenaska’s attorneys maintained that the commitments were voluntary, legally enforceable and separate from the SUP. They said the agreements reflected the company’s desire to maintain a positive relationship with the county and provide additional community benefits, rather than an attempt to secure approval of the project.
The plaintiffs dispute that distinction, arguing that the county negotiated the financial commitments and the SUP together and that supervisors relied on the promised benefits when approving the plant.
They also contend that several commitments exceed the county’s legal authority and may be unenforceable, including against future property owners.
The lawsuit further alleges that the county violated Virginia’s public notice and hearing requirements. Although the SUP was advertised and considered during a public hearing, the restrictive covenants were listed separately as an action item and were not the subject of their own advertised public hearing.
The plaintiffs argue that the covenants effectively functioned as SUP conditions and should have been subject to the same public notice, public examination, and hearing requirements as the permit itself.
Gall said the amended complaint does not introduce substantially new legal arguments but instead strengthens and expands the factual basis of the original lawsuit.
“The bottom line is that Fluvanna County’s approval of Project Expedition was unlawful from day one, which is why we’ve asked the Court to toss the permit,” he said.
Next steps
Plaintiffs Carrie and Darryl Wheaton, Julie and John Noggle, and Karolina and Christopher Whitmore filed the lawsuit on April 17. All live near the proposed plant site on Branch Road.
Beyond challenging the financial arrangements, the lawsuit raises concerns about noise, air pollution, construction traffic, and other environmental impacts. It also alleges that supervisors failed to adequately consider the project’s effects on surrounding properties and the county’s rural character.
Fluvanna County and Tenaska have challenged the plaintiffs’ legal standing to bring the case.
The county did not respond to the Review’s request for comment before press time.
Gall said the court’s next step is to consider the plaintiffs’ request to amend the complaint. He said it is too early to know whether a hearing will be necessary.
After that, he expects the parties to brief and argue demurrers filed by the county and Tenaska. Demurrers challenge whether a lawsuit contains legally sufficient claims to proceed.
The court has not ruled on the allegations, and the March 18 SUP approval remains in effect.
