MONTPELIER – Legal opposition to the construction of the Sheffield Wind Project ended here last week on a distant but sour note.
Members of the Ridge Protectors withdrew their appeal to the Supreme Court on October 19, saying in effect they agreed with the project’s developer, First Wind, that the end of the construction phase on the ridgelines had rendered the hearing moot.
The withdrawal marked the end of a protracted period of opposition to the project that began with the hearings before the Public Service Board in 2007 and continued up to last week with the Ridge Protectors throwing everything in the wind farm’s path but the kitchen sink.
The fight was nearly as bitter as it was long.
In withdrawing the appeal Ridge Protectors’ attorney Stephanie Kaplan took one last shot at a process that opponents felt was stacked against them – the last being the High Court refusal to stop construction on the ridgelines until the appeal could be heard.
“This Court’s decision not to stay the construction meant that the issues raised by the Appellants concerning compliance with the Vermont Water Quality Standards will never be considered, and therefore it will never be known to what extent the streams on and around the project site were chemically, physically, or biologically altered, and whether the Vermont Water Quality Standards were violated,” Ms. Kaplan wrote.
For First Wind, victory was a doubled edged sword. On the day the appeal was to be heard, the remaining three of the 16-turbine wind farm were scheduled to come on line.
According to an affidavit submitted by Sheffield’s project manager, David Ertz, the operational phase of the project began as early as September 21. On that date, he wrote, the “first commissioned turbines began delivering electricity to the grid.”
The remaining three, he wrote, “are projected to be commissioned by October 19, 2011.”
Timing turned out to be a significant factor in the victory for First Wind.
At issue was a storm water discharge permit that Vermont’s Agency of Natural Resources (ANR) had granted for the construction phase the project.
The Ridge Protectors, who had failed earlier before the High Court to overturn a “certificate of public good” granted to the project by the PSB, went to court again over the storm water discharge permit.
It took both ANR and First Wind to Environmental Court in 2009, arguing that the permit’s environmental safeguards to protect high elevation streams and soil were inadequate.
It took the court nearly a year, but in November 2010 Environmental Court Judge Merideth Wright rejected the opponents’ argument. And in response to a motion to reconsider from the Ridge Protectors, she upheld her ruling again in early January 2011.
The group appealed and the case headed for the Supreme Court. While the case was pending, the group also asked the High Court for a stay, which would have stopped construction on the ridgelines until the appeal could be heard.
The five justices, however, denied the stay. In a two-page written decision handed down in May of this year, the High Court found that the group had failed to present any new evidence to justify the stay.
Specifically, the justices found the group “failed to provide any evidence of the threat of irreparable harm to the water quality of nearby streams in the event the permit is not stayed.”
The Supreme Court’s decision not only enabled the project to go forward, but it also set the stage for the opposition’s collapse last week.
The appeal’s underpinnings began to buckle when attorneys from First Wind filed a motion to dismiss on grounds the appeal no longer mattered.
Dated October 12, the motion noted that the permit had a limited scope in that it only pertained to the construction phase of the project. And the motion argued that phase had ended.
“The current conditions at the Project are such that construction-related stormwater discharges have ceased,” attorneys for the project wrote.
“September 30, 2011, was the last date on which construction activities involving earth disturbances occurred, and as of that date, all of the areas of the Project site that involved earth disturbance were stabilized.”
The motion went on to note that there had been no violations of the permit during the construction phase, and during a year “when monthly precipitation amounts regularly exceeded normal amounts by several inches and the Project site sustained at least one 100-year storm as well as Tropical Storm Irene.”
The motion characterized the pending appeal as moot “because it no longer concerns a live controversy and there is no effective relief the Court can grant the parties.”
While opponents accepted First Wind’s conclusion that its appeal was moot, they continued to insist the permit had not gone far enough to protect the project site’s environment.
“Despite the fact that the steep, high-elevation site contains pristine headwater streams that were vulnerable to degradation from the construction, no monitoring of the streams were required by the Environmental Court,” wrote attorney Kaplan in her notice of withdrawal dated October 18.
A spokesman for First Wind Tuesday appeared content to let the matter rest.
“We are looking forward to marking the commencement of commercial operations at the Sheffield Wind Project this week,” said the wind company’s director of corporate communications, John Lamontagne, commenting by e-mail.