It is a sad spectacle for the citizens of the State of Maine (and more than that for the Fox Islands Wind Neighbors, the “Neighbors”) to see the Department of Environmental Protection (the “DEP”), the state agency charged with the responsibility to protect us from environmental harm, align itself with Fox Islands Wind, LLC (“FIW”) to grant a de facto exemption from the Noise Rule and then responding in court with claims that it has the absolute right to do so without judicial oversight. It is even worse that the Commissioner responsible for this was in a highly compromised position, having been employed as an industry lobbyist for the very same law firm asking for such special treatment weeks before she issued the Condition Compliance Order (the “CCO”) at issue in this appeal.
A. Issues about Excessive Noise in Connection with the Licensing of the Project.
B. Noise Complaints Following Commencement of Operations.
C. DEP’s Finding of Non-Compliance and FIW’s Refusal to Cooperate.
D. Events Leading to the Challenged Condition Compliance Order.
I. The Superior Court correctly ruled that it had jurisdiction over the petition for review and that the neighbors have standing.
II. The Superior Court correctly ruled that the CCO is unlawful.
III. The Superior Court erred by dismissing the neighbors’ First Amendment retaliation claim.
For the reasons stated above, the Neighbors respectfully request this Court to affirm the decision of the Superior Court that the CCO is invalid as a product of arbitrary and capricious action, without substantial evidence to support it, and an abuse of discretion and hold that the Neighbors have established a valid First Amendment retaliation claim under Rule 80C, with allowance for an award of attorney’s fees or, in the alternative, that they have set forth a plausible claim under Section 1983 of First Amendment retaliation that may proceed on as an independent claim. The Neighbors further request that the matter be remanded back to the Superior Court so that the matter can be remanded to the DEP with detailed instructions on the parameters of a valid CCO.
Dated: August 5, 2014
Rufus E. Brown, Esq.
BROWN & BURKE
Attorney for the Fox Islands Wind Neighbors and the Individual Petitioners
Download original document: “Brief of Fox Islands Wind Neighbors ”