Large Hurdles, Legal Challenges Likely Lie Ahead.
Late Tuesday night Vermont’s Public Service Board issued a heavily conditioned Certificate of Public Good (CPG) for Green Mountain Power’s (GMP) Lowell wind project. The document outlines 42 conditions GMP must meet to construct or operate the project. Many of the numerous conditions could stop or delay the project, and several are likely to lead to litigation.
Co-counsel for the Lowell Mountains Group Aliena Gerhard noted the number of conditions on the permit, “Issuing a CPG with 42 conditions is like issuing a ‘permit in theory.’ This permit leaves a lot unresolved and demonstrates that this case is far from over.”
Many parties in the case expressed concern that even with the number of conditions, the decision appears to be fairly lopsided in favor of GMP. Parties presented extensive evidence on noise and setbacks, including evidence that contradicted GMP’s expert testimony, only to find that none of it was cited in the decision.
Attorney for the towns of Albany and Craftsbury, Jared Margolis, was disappointed that the Board didn’t agree with the evidence they submitted on noise and the subsequent health effects. “We went to great lengths and expense to ensure the Board understood how noise from this project would impact the surrounding residences, and why what they were hearing from GMP was only part of the real story. But there is almost no indication that the evidence influenced the decision. We are disappointed to say the least,” he said. “It’s as though we weren’t even there.”
The decision does require GMP to submit a compensation plan for neighboring properties that can no longer be safely developed as a result of noise from the project. However, Board Chair James Volz dissented on the provision, suggesting the Board didn’t have authority on the matter. His dissent would seem to provide a route for an appeal from GMP.
Appeals can be expected on the question of the PSB’s authority to declare that public benefits outweigh undue adverse effects, and the issuance of a permit with so many conditions. Appeals are also possible from ANR permits regarding stormwater and wetlands. Since last year, appeals of ANR permits for wind projects are heard by the PSB.
The decision included several other surprisingly lopsided findings, including that the turbines would only need to be 60m (196ft) from neighboring property lines. Substantial evidence from this case and other utility scale wind cases in front of the Board suggest that a safe distance from the over 450ft tall turbines for safety from turbine collapse is closer to1.5 times turbine height, or about 240 meters.
Shirley Nelson, along with her husband Don, is one of the closest landowners and neighbors. She questioned the Board’s decision on safety setbacks from property lines. “Does this mean it will be dangerous to use our land for recreation or future development? It doesn’t seem reasonable the Board would allow GMP to endanger us, and restrict the use of our property,” she said. “It seems reasonable for us to expect that the State would say that it’s not ok for one of their turbines to fall onto our property.”
Other permit conditions covered a wide range of issues. While some are procedural, others, such as the decommissioning and transportation plans, are more significant. GMP will need to develop a full decommissioning plan that includes financial components for the Board’s review. There are conditions related to private lease agreements, wetlands, invasive species management, and many others. Many of the required plans also allow for comment periods by impacted parties. One of the frequently used phrases in the released permit is, “GMP may not commence construction until it has received Board approval of these plans.”
“These conditions mean that our involvement in this project will go on for months, if not years,” stated Steve Wright, a member of the Craftsbury Conservation Commission. “There is no end in sight for anyone who feels that this project has the potential to put the environment and our communities at risk. The PSB has created a process that requires hundreds of hours of time and tens or hundreds of thousands of dollars of expense for small Vermont communities and citizens. This can hardly be seen as a fair, open process that takes communities’ concerns to heart, even those who support the project in theory. The only way that we can represent our communities’ interests is to maintain an unreasonable, exhausting, and costly level of engagement for many, many months in the future. Is this what the PSB expects? The Lowell permit is a good example of how the current system is broken,” he concluded.
The conditions that allow for review by parties to the case all have a two week timeframe. “That’s way too short for the technical issues covered by this permit,” observed Annette Smith, Executive Director of Vermonters for a Clean Environment. “It’s safe to predict that citizens and communities will struggle to secure the technical experts needed to comply with that timeframe. If the Board wants to respect the public’s interest, they are going to have to make their timelines more realistic, and based on the real world that small Vermont towns work in.”
Energize Vermont spokesperson Lukas Snelling commented on the Board’s approach. He said, “It is unfortunate the Board has continued their ‘more on that later’ approach to CPGs. This started with the Sheffield wind project case, and continues with Lowell. With a project of this size and scope, it simply does not deserve a CPG until the details are determined. We doubt GMP can comply with all the conditions of this permit, and anticipate that many of them will lead to further controversy and possibly litigation.”
He continued, “This project and case are examples of strife and stress that is unnecessary for our communities, their people, and our government agencies. The state should instead be encouraging Vermont-scale renewable energy solutions that do not have the inherent impacts of utility scale wind development.”
Energize Vermont was created to educate and advocate for establishing renewable energy solutions that are in harmony with the irreplaceable character of Vermont, and that contribute to the well-being of all her people. This mission is achieved by researching, collecting, and analyzing information from all sources; and disseminating it to the public, community leaders, legislators, media, and regulators for the purpose of ensuring informed decisions for long term stewardship of our communities.
June 1, 2011
Contact: Lukas B. Snelling