Some casual observers of Green Mountain Power’s (GMP) Lowell wind project and the Public Service Board (PSB) process that led to its approval are now criticizing neighboring landowners Donald and Shirley Nelson. The premise of those opining on the litigation GMP has brought against the Nelsons is that the PSB process was thorough and inclusive, and the public must therefore live with its decisions.
Citizens, towns and community groups have now spent well over $1 million participating in the four wind power cases that the PSB has approved. Unfortunately, the PSB has consistently shown that it pays no attention to any testimony that does not support the projects. Let’s review some of the information provided by credible expert witnesses in each case that the PSB ignored:
First Wind’s Sheffield Wind. Bats. Intervenors hired UVM wildlife biologist C. William Kilpatrick to testify about potential harm to wildlife, including bats. Dr. Kilpatrick counted bats on the same night that First Wind’s expert counted bats. The professor identified 100 times more bats than First Wind’s expert did. The PSB ignored Dr. Kilpatrick’s findings and used the lower number provided by First Wind’s expert in making its final decision to approve the project.
The Agency of Natural Resources (ANR) attempts to minimize bat mortality through conditions that wind developers agree to in Memoranda of Understanding (MOU). However, despite new information about strategies that could be employed at wind turbine sites that would better protect declining bat populations, ANR has not revised its requirements to reflect this new information.
Iberdrola’s Deerfield Wind. Bears. Vermont’s ANR Wildlife Biologist Forrest Hammond testified to the PSB in opposition to the project because the development on United States Forest Service land would eradicate a genetically distinct population of black bears from southern Vermont. The PSB, in a split 2-1 decision, used its “public good” analysis to override ANR’s concerns. This is the first case in which the PSB used its notion of public benefits to approve a project that would have been denied by both Act 250 and ANR.
Harrison Concrete’s Georgia Mountain Community Wind. Setbacks. Neighboring interveners provided extensive testimony by an engineer who produced every local, regional and state ordinance in the country that related to safe setbacks for wind turbines. The evidence provided to the PSB overwhelming supports a safe setback from neighboring property lines at 1.1x the total height of the turbine with blade extended, or where ice throw is an issue 1.5x total height. The Vermont Department of Public Service (DPS) recommended a setback of 1.1x the total height. For the turbines chosen by GMCW, that would have meant a setback of more than 500 feet. However, because the developers needed to be only 155 feet from the adjoining property line, the PSB approved that, ignoring the overwhelming evidence that such a setback would be unsafe.
Green Mountain Power’s Kingdom Community Wind. Noise and Health. Intervening neighbors, the Lowell Mountains Group and the towns of Albany and Craftsbury, participated fully and credibly (they thought) in the PSB proceedings. Their expert witnesses provided new evidence about noise and health. Two noise experts and one physician told the PSB that the noise standards it set in prior approvals are at levels where harm is known to occur. Nevertheless, the PSB kept the same noise standards it set five years earlier in Sheffield, completely ignoring the new well-documented evidence.
Damage to Habitat Fragmentation Mitigation Parcels. In its rush to approve GMP’s Lowell wind project, the PSB process went into overdrive when damage to the parcels designated to mitigate habitat fragmentation were brought to the board’s attention. ANR deferred to GMP’s expert witness, despite the fact that the expert was a water quality expert, not a wildlife habitat expert. When that failing was pointed out by the towns, within hours the PSB issued an order requiring ANR to provide a “complete explanation” by the appropriate staff scientist within 24 hours. ANR’s attorney submitted a letter reporting on a phone conversation with a staff scientist. The towns requested a hearing where their experts would testify about the damage done to the mitigation parcels and ANR’s staff scientist could be cross-examined about the basis for his opinion. Two members of the PSB denied the request. In his dissent, the third board member, John Burke, wrote:
“My colleagues make this decision without even an affidavit from ANR’s expert, but rather on a letter from an ANR employee who spoke to the expert. I understand that time constraints exist in this matter …but that does not legitimize the abrogation of the parties’ constitutional rights.”
Setbacks. The battle currently taking place on the Lowell Mountains is the direct result of the PSB once again ceding to the developer’s request, this time for setbacks of 196 feet from neighboring property lines. GMP is now blasting close to the Nelsons’ property line, and flyrock from the blasts is landing on the Nelsons’ property, endangering people on private property. Article Two of Vermont’s Constitution establishes the right that private “property ought to be subservient to public uses when necessity requires it, nevertheless, whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.”
GMP has legal avenues through the PSB to condemn the Nelson’s property needed for blasting. Instead, GMP assumes it can usurp a substantial area of private property without compensating the landowner. In its ultimate hubrus, instead of going through appropriate legal channels to secure the land needed to build its wind project, GMP has filed suit in Superior Court against the landowners whose property it is taking for its own use and profit, and who now have to incur major legal expenses simply to protect their constitutionally-guaranteed private property rights.
VCE advises people on effective participation in regulatory proceedings. We have concluded that we can no longer in good conscience recommend to citizens, community groups or towns that they raise money to hire lawyers and experts and participate in the PSB proceedings where wind energy development is concerned.
It is clear that the PSB ignores witnesses whose testimony identifies negative impacts from wind developments. The regulator has been captured by the regulated. We need a new or different public process (perhaps Act 250) for renewable energy projects, especially utility-scale wind turbines. The common refrain we hear from interveners after each PSB decision is, “It was as though we weren’t even there.”
Annette Smith is executive director of Vermonters for a Clean Environment.
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