Clipper Windpower Inc.’s quest to put a wind turbine project in Western Maryland was deflated again – this time by the Court of Special Appeals, which revived a claim that the company reneged on its earlier settlement agreement.
Objector D. Daniel Boone claims that California-based Clipper reconfigured the project it agreed to in 2003, in an agreement that allowed the project to move forward.
“They unilaterally changed the plans,” said Boone, a former employee of the Maryland Department of Natural Resources. He is challenging the Public Service Commission’s 2005 approval of Clipper’s request to build larger, but fewer, turbines at the Criterion project in Garrett County.
“The issue isn’t so much that we oppose the project,” Boone said Tuesday. “It’s a bigger issue now that if people settle with energy companies with a project for a certain scenario, can [the companies] then change that scenario? It’s bait-and-switch – what’s the point in agreeing to settle?”
Clipper sought a certificate for the Backbone Mountain site from the PSC in August 2002. Boone and three others soon challenged the proposal.
The 2003 agreement allowed the company to build a wind power plant that would generate up to 101 megawatts, with either 67 turbines producing 1.5 megawatts each or 56 turbines producing 1.8 megawatts each. One megawatt is enough to power from 800 to 1,000 homes.
The agreement also set the largest possible diameter for a windmill arm at 262 feet.
The highly detailed settlement gave Clipper some flexibility in final layout and number of turbines, and allowed the PSC to approve changes to “specifications” but stipulated that if the settlement conditions were not adopted verbatim, the agreement would be deemed withdrawn.
Two years later, the wind power company sought and won the PSC’s approval to change the Criterion facility to 40 turbines of 2.5 megawatts each, generating 100 total megawatts on the approximately 41-acre site.
The windmill arm diameter was extended to 305 feet, a 16 percent increase in length.
In a “letter order,” the PSC ruled that the proposed changes would not result in a negative environmental impact, and would in fact be an improvement on the existing plans. Clipper Windpower had shortened the windmill towers to accommodate the longer blades and keep the total height at 393 feet, which also resulted in the turbines sweeping over less total area, a DNR report noted at the time.
Boone and his attorney, John Coyle Jr., immediately challenged the approval in Baltimore City Circuit Court, which dismissed the petition in January 2006.
On Monday, the Court of Special Appeals reversed.
The PSC’s letter order met all three criteria for a final, reviewable order, the court held. “It settled the matter in controversy by dismissing the case,” Judge Peter B. Krauser wrote for the unanimous appellate panel. “It denied Boone “˜the means of further prosecuting [his] case.’ And, finally, it left “˜nothing further for the [Commission] to do.'”
The case was sent back to the circuit court for a hearing.
Miles Mitchell, acting general counsel for the PSC, was unavailable for comment.
Boone, who described himself as a consulting conservation biologist, said he remains wary of wind as an alternative energy source. He noted that turbines in other states have been lethal to birds and bats migrating at night, and that wind power plants often run far below their actual megawatt capacity.
“It’s a lot of destruction and threat to the environment for a very limited benefit,” he said.
A Clipper Windpower representative was unavailable immediately for comment. The company’s Web site states that wind power is an environmentally benign and cost-effective method of producing electricity because of its comparatively minimal impact to wildlife and people.
The Criterion project could provide enough energy to serve up to 35,000 households in the mid-Atlantic region annually, the site said.
Monday’s unreported opinion is available as RecordFax #7-0423-03 (16 pages).
By Liz Farmer
Special to the Daily Record
24 April 2007
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