The Patrick administration and the environmental groups have been falling all over themselves recently supporting the so-called wind energy permitting reform legislation currently before the Legislature (An Act Relative to Comprehensive Siting Reform for Land Based Wind Projects, S. No. 2260, H. No. 4687).
The Senate has already passed the legislation, and word is that the House is ready to approve it as well.
The legislation would make sweeping changes to existing law. For starters, it would exempt new wind facilities from all (that’s right, all) state and local laws and regulations, including of course local zoning bylaws and local and state environmental and health and safety requirements.
Given the radical changes the bill would make, it has had surprisingly little public comment. That is in part because environmental groups like Mass Audubon and the Conservation Law Foundation, which can usually be counted on to send their members to the barricades at the least hint of any weakening of environmental laws, have strangely been cheerleaders of the bill.
So, in the interest of fostering some debate, it seems a fair question to ask: Why exactly is the legislation such a good idea?
Fundamental changes to Massachusetts law
Like most legislation, the bill is complicated. I highlight here just two of the fundamental changes it would make to well-established Massachusetts law:
1. At the local municipal level, wind energy projects are approved by a three-person appointed board. The board has the power to override or waive any and all local bylaws and regulations, including zoning requirements, wetlands or other environmental regulations, Board of Health requirements and the like. In this respect then the bill is similar to Chapter 40B in that it gives to favored developers a free pass on all local municipal bylaws and requirements.
2. At the state level, wind energy projects are approved by the Division of Green Communities (whose personnel are again appointed, in this case by the governor). The division similarly has the power to override or waive any and all state laws and regulations, including environmental laws and regulations, public health and safety regulations, etc. (The only limitation on the division’s power to waive state requirements is where those requirements are tied to a federal requirement.) This bill then goes well beyond 40B in giving wind energy developers a free pass against state, as well as local, laws and regulations.
The language of the bill is breathtaking in its broad sweep:
“No state agency shall impose or enforce any law, ordinance, bylaw, rule or regulation … which would delay or prevent the construction, operation or maintenance of such facility.” H. 4678, ll.193-197.
In short, at both the local and the state levels, approvals by multiple, often elected, boards and agencies are replaced by approvals by a single appointed board. And, more importantly, these boards are given the extraordinary authority to waive any and all normally applicable laws and regulations.
The bill’s supporters would add here that the legislation requires, in place of these waived state laws, that the division develop “standards” for wind energy facilities incorporating the substance of these laws. These “standards” are in effect a parallel version of applicable state law. These “standards” are a poor substitute, for several reasons.
First, they are optional, not required.
Second, and more importantly, as a practical matter, the idea that the division can take thousands of pages of legislation – legislation enacted over many decades, detailed in thousands of pages of agency regulations, guidance and policy, interpreted by thousands of judicial and administrative decisions – and that this huge body of legislation and interpretation can be meaningfully restated as “standards” is fanciful in the extreme.
This account of the two most striking features of the legislation brings us to the real question: Why is this extraordinary revamping of the laws of the commonwealth being proposed?
If – as was arguably the case with enactment of the Patriot Act in the face of the events of Sept. 11, 2001 – our very existence as a state were in question, then such strong medicine might well be warranted.
But wind energy is not remotely comparable. I am frankly amazed that legislation so radically altering fundamental notions of the rule of law and local home rule has advanced so far.
Whatever one believes about the ultimate importance of wind power as an element of this country’s energy mix, the fact remains that the men and women who propose these projects are business people, and as such are at base motivated by profit to themselves and their shareholders. They are not working in the public interest.
Accordingly, it is astounding that the legislation proposes to give these people a free pass against all state and local laws, bylaws and regulations, and, as if that were not help enough, to also take from existing democratically elected or appointed decision-makers authority to approve these projects and instead vest it in single appointed bodies at the local and state levels.
Perhaps there is a good argument as to why the wind industry needs the extraordinary help that the legislation would give it – help in addition to the huge financial subsidies that it already enjoys. But if there is, I haven’t heard it.
Those of us who care for the rule of law and the democratic process as it has developed in Massachusetts over the course of nearly 400 years should require of our legislators that they have a satisfactory answer to this question before they vote on H. 4678.
Michael Bliss is a Boston-based lawyer with more than 25 years experience in the areas of land use and environmental law.
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