January 30, 2008

Ridge Protectors appeals to Vermont Supreme Court

Tena Starr, Staff Writer, The Caledonian Record, caledonianrecord.com 30 January 2008

Ridge Protectors has filed a Vermont Supreme Court appeal of the Vermont Public Service Board’s decision to approve a wind farm in Sheffield.

The appeal comes as no surprise. Ridge Protectors, a citizens’ group opposed to big wind turbines on Vermont’s rural ridge lines, has tenaciously battled the project and announced its intent to file an appeal last fall.

UPC Wind, based in Massachusetts, wants to put up 16 420-foot commercial turbines on Sheffield’s ridge lines.

In August, the PSB issued a certificate of public good for the project, along with 32 conditions to be met, saying that the economic benefits of the 40-megawatt generating project outweighed its adverse affects.

Ridge Protectors’ appeal, filed late Monday, asserts that the PSB actually did not demonstrate that the project will result in an economic benefit to the state and its residents, a serious legal deficiency in its decision, lawyers claim.

At the root of that argument are the absence of “stably priced power contracts.” Loosely, that means power contracts that are relatively long-term and have a somewhat fixed cost, such as those with Vermont Yankee or Hydro-Quebec.

“The Board specifically found that UPC had failed to negotiate stably priced power contracts with Vermont utilities, and the absence of said contracts would not provide an economic benefit to Vermonters sufficient to offset the project’s significant environmental impacts as found by the Board,” the appeal says.

One of the conditions in the PSB order says that UPC must make all reasonable efforts to enter into those contracts with Vermont utilities, produce copies of them for the board’s review and approval and for comment from other parties.

That condition is not good enough and constitutes “error,” the appeal asserts, because it sidesteps a statutory mandate requiring it be demonstrated that the project is of economic benefit before a certificate of public good is issued. Without stably priced contracts, that benefit is not definitively shown, the document says.

The appeal says the PSB further erred when it concluded that the 2006 regional plan for the area did not apply to UPC’s application.

When the board did, nevertheless, evaluate the project under the 2006 Regional Plan to determine whether the UPC project would unduly interfere with orderly growth in the region, the board ignored the clear and explicit language of the Regional Plan, which excludes commercial wind turbines from the region, the document says.

“The Board’s conclusion is not supported by the Board’s findings or the Regional Plan itself and is contrary to specific language in the Regional Plan explaining why commercial wind turbines would interfere with the region’s orderly growth,” it states.

Finally, the PSB was in error when it concluded that the project would not have an undue adverse effect on aesthetics or scenic and natural beauty, the brief says.

The board “failed to apply existing precedent to determine whether or not the proposed project would violate a clear written community standard contained in the Regional Plan; would be shocking or offensive to the average person: and whether UPC had provided sufficient mitigation to reduce the project’s aesthetic impacts.”

The board’s failure to find that UPC has proven that the project will result in economic benefit is a legal deficiency, the brief says. The application should have been rejected on that basis alone, but instead the board set the further pursuit of stably priced contracts as a condition.

It quotes a section of the PSB finding that says: “The volatility of the regional power market and the price increases expected in this market lead us to conclude that UPC’s proposed indexed contracts with Vermont utilities may not provide an economic benefit to Vermonters sufficient to justify the impacts of the project.”

“There is no basis in the record or finding in the decision why UPC could not and should not have been required to present all necessary evidence to resolve these issues prior to reaching a decision on the CPG,” the appeal says. “In fact, as the record clearly demonstrates and the Board so found, UPC failed to prove the project would result in an economic benefit to the state and its residents. On this basis alone, the CPG should have been denied.

The appeal argues that despite the PSB’s “erroneous conclusion that the 2006 Regional Plan did not apply, it evaluated UPC’s proposed project under that plan and stated that commercial wind development is inconsistent with portions of the regional plan and given the size and number of the turbines proposed, we conclude that they will constitute a large scale commercial development and thus be inconsistent with the land uses described as traditional in a rural area.

“Nevertheless, the Board ignored its own findings and concluded that the project met the requirements … since it would impact only one small part of the region, and because the plan specifically recognizes that commercial scale wind energy needs to be considered as a resource.”

However, the brief says that the regional plan does not endorse big commercial wind projects in rural areas because much opposition to them had been expressed.

“In this proceeding, the Board concluded that no party disputes that the project would have an adverse aesthetic impact,” the document says. “The proposed turbines are out of character with the surrounding area.”

“As the Board’s own findings and the expert testimony demonstrates, the proposed industrial scale, steel turbines are not merely out of character, but are grossly out of character with the scenic natural surroundings of Granby Mountain and its adjacent ridge lines, and would significantly diminish the aesthetic qualities of the area, both for the recreational users of the Willoughby State Park and Willoughby National natural landmark area and the thousands of long duration viewers either engaging in recreational activities on Crystal Lake or residing in homes adjacent to the roadways to the east of the project site or traveling on Interstate Route 91 or Route 5.”

PSB Deputy Clerk Judith Whitney said the board is not allowed to comment on a pending case. She accepted e-mail questions for the board, but there was no response as of Tuesday night.

“UPC Wind supports and stands by the decision of the PSB, and we are proceeding accordingly and are prepared to meet all of the PSB’s conditions as part of the Certificate of Public Good that was granted to the Sheffield project last year,” Matt Kearns, UPC Wind project manager for the Sheffield project, said in an e-mail.

URL to article:  https://www.wind-watch.org/news/2008/01/30/ridge-protectors-appeals-to-vermont-supreme-court/