Attorneys for opponents of the UPC Wind project in Sheffield have filed a 33-page brief detailing their reasons why the Vermont Supreme Court should overrule the state’s Public Service Board and stop the project.
In the appeal filed on behalf of the Ridge Protectors, a citizens group, attorneys C. Daniel Hershenson of Norwich and Anthony Roisman of Lyme, New Hampshire, argue that the Public Service Board (PSB) committed four basic errors in granting the project the “certificate of public good” it needed to proceed.
The brief focuses quickly on an issue the PSB itself singled out for special attention – the economic impact of the project.
Noting that it is required by state law to find that approved projects “will result in an economic benefit to the state and its residents,” the PSB gave the project only conditional approval. UPC must, it ruled, make “all reasonable efforts” to negotiate contracts with Vermont utilities that would benefit their ratepayers.
But if the PSB did not find that the project, as presented, would be to Vermont’s economic benefit, the attorneys argue, it should have denied the certificate of public good outright.
“Reason dictates that if the project’s benefits are too small to offset its many adverse impacts, the balance does not improve by merely requiring UPC to ‘make further efforts’ to obtain stably priced contracts,” they argue. “If ‘further efforts’ fail, the same inadequate benefits and substantial adverse impacts remain.”
The second focus of the appeal is the regional plan adopted by the Northeastern Vermont Development Association in June 2006, after UPC filed its first proposal with the PSB that February, but before it filed an amended application in October.
The new plan made no provision for industrial wind farms, the brief states. “Specifically, the Regional Plan states that an initial draft of the Regional Plan supported the construction of commercial wind turbines, but this position was abandoned in the Regional Plan’s final version because ‘the vast majority’ of citizens in the Northeast Kingdom were ‘adamantly opposed’ to a Regional Plan supporting construction of industrial-sized wind turbines….”
The PSB “committed error” when it ruled that the new plan did not apply to UPC’s proposal, the attorneys argue.
UPC’s revised plan, which dropped all towers planned in Sutton, where opposition was fierce, and called for 16 taller, 420-foot towers in Sheffield, was so different from the original that it should have been treated as a new application, filed after the new regional plan took effect, the attorneys argue.
The PSB did look at the new plan, they concede, but erred when it ruled that the wind farm would affect only a “small part of the region” and so was not inconsistent with the plan.
The attorneys attack the PSB’s “unsupported assertion that the impact from sixteen 420-foot-high wind turbines stretching over the highest ridgelines in the area for a distance of almost three miles are acceptably small.”
“If this project is too small for the Board to consider it significant,” they write, “it is difficult to imagine that the Board would find any project that is inconsistent with the Regional Plan’s goals sufficiently large to fail….”
The third point of attack is more technical. The attorneys argue that the PSB repeatedly confused “findings of fact,” which the Supreme Court would be reluctant to overrule, with “legal conclusions,” which are its bread and butter.
“For example,” they write, “finding 183 which states ‘the view of the project from Interstate 91 would not be unduly adverse’ is, at best, a conclusion and refers only to a testimonial recital made during the hearings.”
Finally, the attorneys attack the PSB’s application of the “Quechee test,” against which it measured the aesthetic impact of the wind farm.
They cite the PSB’s own finding that “no party disputes that the project would have an adverse aesthetic impact. The proposed turbines are out of character with the surrounding area.”
The Quechee test deals with whether such impact is not only “adverse,” but also “undue.”
It is undue, the test says, if the project will be “shocking and offensive to the average person.”
The attorneys quote this passage from the PSB’s ruling for the project: “The majority of the views of the project are from a distance such that the size would not be overwhelming. Viewed from such distances the average person would not find the scale of the project shocking or offensive.”
The issue is not whether the project would offend from a majority of viewing locations, the lawyers argue in their appeal. It is, rather, whether the wind towers would be so out of character with their surroundings that they significantly diminish the aesthetic qualities of the area.
by Chris Braithwaite
30 January 2008
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