While Massachusetts Gov. Deval L. Patrick continues to push for more renewable energy and conservation efforts, a plan to build 20 wind turbines in Florida and Monroe is stymied by a protracted legal challenge from environmentalists.
The so-called “Group of Ten” has, since 2004, been challenging a Massachusetts Department of Environmental Protection permit allowing road construction across 12 streams on the way to the turbine sites on Bakke Mountain in Florida and Crum Hill in Monroe.
The proposed turbines would generate 1.5 megawatts of power, for a total of 30 megawatts, enough to supply electricity to 9,000 homes on the power grid.
“We want to be sure that the state’s environmental regulations are properly enforced,” said John C. Bartenstein, the attorney representing neighboring opponents and another organization, Green Berkshires.
“The delays have been unfortunate,” said Paul Copleman, spokesman for PPM, the company that owns the Hoosac Wind Project. “But we still feel that the site remains an excellent location for a lot of different reasons.”
The legal path carved by the dogged opponents to this project is long and has resulted in more than four years of delays. In the meantime, the estimated costs of the project have grown by millions of dollars.
Between 2005 and 2006, the average cost of building a wind farm rose $220 per kilowatt of capacity, according to the 2007 Annual Report on U.S. Wind Power issued by the U.S. Department of Energy. The estimated average cost of building a 30-megawatt wind project, therefore, increased by about $6.6 million in one year, to $44.4 million, at $1,480 per kilowatt of capacity in 2006.
Florida town officials are becoming increasingly frustrated with the seemingly endless delays, said Christine Dobbert, town administrator.
“Everybody is very frustrated,” she said. “The hope was that (the wind turbines) would have gone up a year ago. Our biggest fear is that (PPM Energy) will pull out because the cost has gone up so much. The Selectmen have done everything they can to help this move forward.”
Dobbert characterized the project as “good for the town financially and good for the environment. It’s just a good project.”
The town is negotiating with PPM on how much the company will pay the town every year in lieu of taxes.
Next hearing Aug. 7
The legal wrangling on this latest appeal started on July 20, 2007, and the next hearing in the case is set for Aug. 7. A ruling is expected several months after the hearing.
The project, begun in 2004, had its original permit withdrawn in February 2005, when the two groups appealed DEP’s wetlands permit to an administrative magistrate.
More than two years later, in May 2007, Administrative Magistrate Natalie S. Monroe ruled against the DEP’s permit. She took issue with the standards for defining annual flood level measurements in the construction zone, and she predicted potential damage to protected wetland zones during construction.
She noted that the open-bottom culverts used for roads crossing the streams would threaten vegetation on stream banks.
New roads are needed to transport parts for the 340-foot tall turbines and heavy construction equipment to the ridgelines where foundations will be installed. Eleven turbines would be erected on Bakke Mountain in Florida and another nine on Crum Hill in Monroe.
In June 2007, the acting commissioner of the DEP, Arleen O’Donnell, overruled the magistrate’s advisory finding, based on new standards for the protection of stream beds.
Her final ruling cleared the way for a new DEP wetlands permit. But on July 20, the opponents appealed her decision to the Suffolk Superior Court in Boston, alleging that O’Donnell’s decision should be overturned.
The defendants in the lawsuit are the DEP and New England Wind LLC, the company set up by PPM to build the turbine project.
Last Oct. 3, the new DEP commissioner, Laurie Burt, issued the final order of conditions, allowing the project to go forward. But the plaintiffs – listed in the pleadings as the Ten Local Citizen Group and the Ten Person Environmental Group and commonly referred to as the Group of Ten – filed for an injunction to prevent construction.
In response, McGregor & Associates, attorneys for New England Wind, wrote to the court that in raising yet another challenge, “the plaintiffs signal again their purpose to delay this important renewable energy project to provide sufficient power for approximately 9,000 homes.”
The plaintiff’s lawyers deny that their efforts are an attempt to hold up construction.
Both sides in the dispute have foregone arguments regarding the injunction, so long as construction does not take place on the site.
Instead, both parties are focused on the environmentalist’s argument that the original magistrate’s ruling was supported by law and that the acting commissioner’s reversal is not, Bartenstein said.
In seeking a judgment, McGregor & Associates wrote that the “plaintiffs, only some of whom reside in the two towns in which the project will be built, opposed this wind power project throughout the local and state wetlands permitting process where they lost at every turn. They just do not want it built in the Berkshires.”
The parties are challenging each other’s evidence regarding the mean annual flood levels and the use of open-bottom culverts.
At one point, the defendants point out that the open bottom culvert is the least invasive approach to support a road crossing a stream. It’s the currently recognized construction standard for doing so, and the plaintiff offers no alternate solution for crossing the stream with less impact, according to the McGregor & Associates.
PPM lawyers maintain that environmental permitting laws give the DEP legal authority to decide “how much (environmental) harm is allowable and how much mitigation is necessary. … Here the project stayed out of the wetland resources almost completely and so easily meets the standards of DEP.”
And even if the plaintiff’s claims are taken as true, the pleading concludes, “that does not amount to a legal claim, let alone one of substantial harm to the plaintiffs.”
Attorneys for the Group of Ten wrote in a memorandum that “the rights of the public and proper enforcement of the Wetlands Protection Act … are more than substantial.”
Their memorandum continues that if the magistrate correctly found that PPM has not satisfied the requirements for a wetlands permit for this “massive road project,” the rejection of that decision by the DEP Acting Commissioner without proper basis in law or fact can hardly be classified as ‘insubstantial’ or ‘harmless error.’ ”
Observers agree that whichever way the judge rules in his decision after the Aug. 7 hearing, an appeal appears likely.
An appeal would go to the Massachusetts Appeals Court, where a ruling could take nine to 18 months. A further appeal to the Massachusetts Supreme Judicial Court would stand little chance of being heard: An average of one in 10 cases are accepted by that court.
William B. Pardee, Massachusetts assistant attorney general representing the DEP, declined to comment because the litigation is ongoing. Attorneys representing PPM Energy also declined to comment for the same reason.
By Scott Stafford, Berkshire Eagle Staff
5 May 2008
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