Legislation that will affect your community 

Even if you want wind turbines in your community, you won’t want legislation now being considered on Beacon Hill.

This fall, the Massachusetts legislature will vote on a bill called the Wind Energy Siting Reform Act (WESRA) that:

• Enables the state to override local decisions on permitting industrial wind turbines, access roads, transmission lines, and substations.

• Allows local zoning and non-zoning requirements to be waived in permitting these projects.

• Sets aside state laws that were written to protect local health and safety.

• Eliminates the most important rights of public participation in the review of wind projects.

• Severely limits rights of appeal.

Your community has enough area with wind resources to be affected by this legislation.

Here is more information on WESRA:

The Wind Energy Siting Reform Act shifts final decision-making power over everything to do with permitting industrial wind turbines in your municipality from local elected officials to an appointed state board that has never rejected a power plant application.

If your municipality has a spot where even a single industrial-scale wind turbine could be erected, your municipality will be subjected to this unprecedented loss of local control.

The purpose of WESRA is to promote the development of wind turbines by streamlining and accelerating the permitting process and by restricting – and in most cases eliminating – traditional rights of appeal by municipalities and the public.

There are two virtually identical versions of WESRA, Senate No. 1666 and House No. 1775.

Both are the subject of two public hearings, one that already took place on September 7, 2011, in Hancock MA, and the second scheduled for September 26, 2011, in Barnstable MA.

After the second hearing, the legislature could vote at any time to adopt WESRA.

Please weigh in by calling or submitting written comments to the Joint Committee on Telecommunications, Utilities & Energy.

Your state legislators, the Senate President and Speaker of the House, and the Massachusetts Municipal Association also need to hear your opinion.

WESRA will be adopted if communities like yours do not object.

Here are the key points of WESRA:

• It allows the state to permit a wind project even if the municipality denies a permit.

• It replaces all state laws that ordinarily govern the construction and operation of wind turbines and associated infrastructure with standards that are created by a single state agency, and can be waived at that agency’s sole discretion.

• It eliminates almost all rights of appeal, including the existing right of municipal officers and boards to appeal a decision of a municipal board.

• It applies not just to wind turbines, but also to the associated public and private roads, transmission and distribution lines, substations, and any other building, structure, or equipment that is part of the turbine project.

Here is what happens at the local level under WESRA:

Under WESRA, if the state determines that your municipality has at least one “significant wind resource area,” your select board must appoint a Wind Energy Permitting Board (WEPB) which is completely independent of any municipal oversight. If your municipality does not have such an area but, nonetheless, one or more wind turbines totaling 2 megawatts in size is proposed, then your select board has the option of appointing a WEPB or designating the planning board as the WEPB:

• The local WEPB can waive all municipal zoning and non-zoning requirements, including bylaws adopted by town meeting, ordinances, regulations, and any other local rule in order to permit the project or permit it with conditions.

• The time period for making a decision is tight and inflexible. Failure to meet the deadlines results in a constructive approval.

• For compensation to the municipality, the local WEPB can require only certain fees to retain consultants, a “community mitigation fee” capped by the state, and up to 10% of the electricity generated from the project. Anything else must be negotiated with the developer.

• The local WEPB must issue a written decision. Once that is issued – regardless of whether or not it is an approval – the developer can proceed to the state for a permit.

• If the local WEPB issues a decision that other municipal boards oppose, unlike under current zoning law, there is no means for a municipal officer or board to appeal the decision. (See M.G.L. Chapter 40A, Section 17 for current law.)

• Neighbors to a project can no longer go to superior court to appeal a local approval of a wind project; their only recourse – and only if they are “substantially and specifically aggrieved” – is to the state Energy Facilities Siting Board, which cannot reverse a local approval.

Here is what happens at the state level under WESRA:

Once the wind developer receives a written decision from the local WEPB – whether or not it is an approval – the next step is the state Energy Facilities Siting Board. The EFSB is appointed entirely by the governor and his staff:

• Under WESRA, all state laws are replaced by standards, which the EFSB writes, and which it can apply or waive at its discretion in order to permit a wind project.

• Even if a wind project does not meet any of those standards, the EFSB can still permit it.

• The timetable is short and, contrary to current law, any flexibility is at the sole discretion of a single EFSB hearing officer. On even the most complex and controversial projects, a final decision must be issued within a year.

• Unlike every other energy project before the EFSB, a wind project is not reviewed under adjudicatory procedures, so customary rights of participation and appeal by municipalities and the public are lost. Furthermore, the process of review and appeal under state laws such as the wetlands protection act is also lost.

• Just as municipal officers and boards have no standing to appeal a decision of the local WEPB to the EFSB, they have no standing to appeal a decision of the EFSB.

• The state agencies that our municipalities usually depend upon to help assess complex projects no longer have a review and approval role under WESRA. Their only job is to make recommendations (which can be ignored) and enforce decisions issued by the EFSB.

The governor’s office, which is pushing WESRA, has claimed repeatedly that the legislation does not override local denials of a permit. That is not true. Under current law, if a project of any type requires both local and state permits, it cannot be constructed without both sets of permits. That is not the case under WESRA. Under current law, there is an exception for some large power plants, but those can seek an overriding state permit only after demonstrating every effort to obtain local approval first, and all rights of participation in the review process and appeal by neighbors, municipal officers and boards, and other interested parties still apply. Not so under WESRA.

WESRA completely re-writes the rules for a single industry, and regardless of your opinion about the value of wind turbines in your municipality, ceding control to an appointed state agency over the location, size, and operation of a wind facility, roads, and transmission corridors ought to be of concern to every local public official. After all, if the wind industry succeeds in carving out special privileges for itself in state law, every other powerful industry will seek the same benefits.

Keep in mind that WESRA will affect not just development of wind projects in your municipality, but also all other development because wherever massive wind turbines are erected you can be sure residential and commercial development will avoid those areas.

There is tremendous political pressure on the state legislature from the governor’s office and the wind industry and its allies to pass WESRA. Please contact your state legislators, the Massachusetts Municipal Association, and the state legislature’s Joint Committee on Telecommunications, Utilities & Energy. The Senate President and Speaker of the House need to hear your position, also.  

WESRA will pass if your municipality and others do not object.

Here is the schedule for the hearings of the Joint Committee:

• The first hearing was at Jiminy Peak in Hancock MA, Wednesday, September 7, 2011.

• The second hearing will be at Tilden Arts Center, Cape Cod Community College in Barnstable MA, Monday, September 26, 2011, starting at 10:00 a.m.

Here is the information for contacting key legislators:

Senator Ben Downing, co-chair

Joint Committee on Telecommunications, Utilities & Energy

Benjamin.Downing@masenate.gov

(617) 722-1625

Representative John Keenan, co-chair

Joint Committee on Telecommunications, Utilities & Energy

John.Keenan@mahouse.gov

(617) 722-2263

Senator Therese Murray, Senate President

Therese.Murray@masenate.gov

(617) 722-1500

Representative Robert DeLeo, Speaker of the House

Robert.DeLeo@mahouse.gov

(617) 722-2500

Here is the person to contact at Massachusetts Municipal Association:

Geoffrey Beckwith, Executive Director 

gbeckwith@mma.org

(617) 426-7272

To learn more about WESRA, you can download the Senate and House versions:

http://www.malegislature.gov/Bills/187/Senate/S01666

http://www.malegislature.gov/Bills/187/House/H01775

If you have questions or want more detailed information, please visit our website, <www.windwisema.org>.

Please don’t file away this email: your input is needed now before the legislature votes this fall on WESRA!

Thank you very much for your attention to this legislation.