Wind Energy Siting Reform Act — summary analysis 

The Wind Energy Siting Reform Act is under consideration by the Massachusetts legislature. If enacted, it will promote onshore industrial wind development in every municipality within the state, and shift control over the permitting from local zoning boards to the Massachusetts Energy Facilities Siting Board.

It will also open constitutionally protected public lands to industrial wind development.

This Act will apply to all the communities of Massachusetts, but targets those in the Berkshires and along the coast. It does not address offshore wind development, where the highest wind speeds are found.

If this Act is enacted, wind-facility approvals by the Energy Facilities Siting Board (EFSB) could permanently change the future character and economy of the Berkshires. Based on the nearly two decades of decisions posted online, the EFSB has never turned down a power plant.

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Under this Act, every municipality in the state, regardless of whether or not it has sufficient wind by state standards, will be required to review the permit application for any onshore wind facility of 2 megawatts (MW) or more, irrespective of local bylaws. This means that communities with any wind resources at all could see applications for one or one hundred wind turbines, without local veto over locations, operations, or impacts.

If a municipality does not approve a wind facility, the wind developer may file for an overriding approval by the EFSB. If the EFSB finds that the wind facility meets its standards, it shall approve the project.

If a municipality approves a wind facility but attaches conditions that the wind developer doesn’t like, the developer can appeal to the EFSB, and, even if the wind facility doesn’t meet the EFSB’s standards, the EFSB must issue an approval if it finds that the facility has complied to the “maximum practicable extent,” that the impact of non-compliance has been mitigated, and that the benefits of the wind facility outweigh the detriments.

During the EFSB’s review of a wind facility, people, groups, and towns outside the host municipality cannot submit evidence. The EFSB can ignore recommendations from other state agencies and the host municipality if it finds that those exceed the “maximum extent practicable.”

If the EFSB issues an approval, no other state or local law shall prevail, and no state agency or local government can require, impose, or enforce anything else.

Under this Act, there is no right of appeal for neighboring towns or citizens living outside the town but inside the impact zone. Only a few parties have standing, and the only appeal of the EFSB’s decision is to the state’s supreme judicial court, and only if the EFSB’s approval violates the U.S. or state constitution or this new Act and its associated regulations.

Under this Act, wind facilities can be constructed on constitutionally protected public lands (known as Article 97 lands.)

Wind facilities can impact the Appalachian Trail and other scenic trails and vistas, priority and estimated habitats of state-listed species, bird and bat populations vulnerable to wind turbine operation, large unfragmented habitat blocks, wetland resources, and other ecologically sensitive areas subject to protection under federal and state law.

Not only does this Act apply to all wind facilities of 2MW or more, it defines wind facilities to include all public and private roads, all transmission lines on public and private property, and any buildings, structures, or equipment with a primary purpose of transmitting wind-generated electricity. In other words, any construction related to the wind turbine will be covered by this Act, and effectively exempted from local control or veto power.

These wind facilities will be subsidized at great expense to taxpayers and electricity ratepayers, and may have damaging economic impacts on neighbors and host and surrounding municipalities, yet the Act explicitly states that the EFSB’s regulations cannot require any data related to necessity and cost of a wind facility.

Under the Act, the EFSB is authorized to set a schedule of impact fees that a wind facility owner must pay to the host municipality. If the municipality asks for more money or other benefits, the wind developer can seek an override from the EFSB.

Although the Act will have exceptional impact on the Berkshires, it appears that no representative of the Berkshires was on the commission that drafted the legislation. No public hearing has been held here. On May 20, 2009, the legislature’s Joint Committee on Telecommunications, Utilities & Energy held a public hearing on the Act at the State House. The hearing was packed with wind company executives, their lawyers, lobbyists, and consultants. On behalf of Green Berkshires, I submitted testimony against the Act, and was the only person to do so.

This Act should alarm all residents of Massachusetts, and I urge you to contact your legislators to oppose it. Please act quickly because the legislature could vote at any time to approve the Act. Thank you.

Eleanor Tillinghast, Green Berkshires, Inc.

5/25/09