In this case residents living near the wind energy project (the “Project”) of Fox Islands Wind (“FIW”) on Vinalhaven and an organization they formed to protect their respective interests, Fox Islands Wind Neighbors (“FIWN”), challenge the Condition Compliance Order issued by the Department of Environmental Protection (the “DEP”) on June 30, 2011, Department of Environmental Protection (“DEP”) Administrative Record, as revised April 20, 2012 (“AR”), 142, Petitioners’ Rule SOC Brief Appendix (“Pet. App.”) 124, following earlier findings by the DEP on November 23, 2010, AR 46, Pet. App. 59, that FIW was not operating in compliance with 06-096 CMR 375 §10 (the “Noise Rule”), AR 143, Pet. App. 133, as required by statute, 35-A M.R.S.A. §3456.1.A, and its operating license issued on June 5, 2009 (the “License”). AR 3, Pet. App. 10.
SUMMARY OF THE ARGUMENT
A core issue this case raises is whether the Commissioner of the DEP may lawfully deny citizens of this State protection from exposure to excessive noise from a wind project licensed by the DEP. The Wind Energy Act, P.L. 2007, Ch. 661 enacted legislation that included the requirement for certification of small-scale wind energy projects. 35-A M.R.S.A. §3456.1. The statute requires small-scale projects to comply with the Noise Rule to the same extent as grid-scale projects.
In the pages that follow we will show that both the DEP and FIW knew from the outset that it was likely that the Project would exceed the applicable 45 dBA nighttime noise limits required by the Noise Rule whenever there is significant vertical and directional wind shear. Once the Project began operations in the Fall of 2009, adjoining residents immediately complained about the extent of the noise. After multiple complaints were filed by Petitioners over the next several months, the DEP’s noise consultant finally concluded in September 2010 that the very conditions flagged in the application caused the Project to exceed the applicable noise limits. FIW belligerently refused to acknowledge non-compliance and refused to provide operational, sound and meteorological data requested by the DEP so that it could design corrective action to assure the Project would operate lawfully in the future. FIW’s combative posture led the DEP to issue a formal Determination of Non-Compliance on November 23,2010, finding that the Project was operating in violation of the Noise Rule based on a complaint made for the evening of July 17-18, 2010. It further ruled that the Project was likely to exceed the applicable sound limits whenever there is significant vertical and directional wind shear, regardless of wind direction. Based on these findings, the Determination of Non-Compliance mandated that FIW take corrective action.
As a standoff between the DEP professional staff and FIW developed on what corrections should be made to operations and reporting to account for the non-compliance of the Project, FIW seized on the opportunity presented by the election of a Governor, with known hostilities to environmental regulations, to launch a political campaign to force the professional DEP staff to back away from its regulatory demands for effective corrective action. Eventually, Acting Commissioner Aho terminated the efforts of her professional staff and the DEP’s consultant to draft new protocols that would adequately address the wind shear issues plaguing this Project. … Instead she gave FIW free reign to design the framework of noise regulation going forward in the Condition Compliance Order.
Based on this record, as further described below, Petitioners will show that the Condition Compliance Order itself is unlawful because it exceeds the authority of the DEP to allow a small-scale wind project to operate in violation of the Noise Rule. Petitioners will also show that the protocols adopted in that Order have the practical effect of exempting the Project from regulation and are unlawful for that reason. Finally, Petitioners will show that such protocols are also the product ofan arbitrary and capricious decisionmaking and an abuse of discretion. Finally, we will demonstrate that the Condition Compliance Order is unlawful as the product of political bias, and violated rights of the Petitioners protected by the First Amendment and the Equal Protection Clause.
Download original document: “Fox Islands Wind Neighbors v. Maine DEP: Petitioners’ Rule 80C Brief”
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