April 4, 2012
Vermont

Lowell wind foes make their case

by Joseph Gresser, the Chronicle, 4 April 2012

ROYALTON – In what is likely to be the last chance to block the construction of a wind project on Lowell Mountain, lawyers argued their positions before the Vermont Supreme Court here Wednesday morning, March 28. The court goes on the road every year hearing cases before an audience composed largely of students at Vermont Law School.

The justices seem to plan the docket to include matters of environmental law, a specialty of the school.

In an unusually long hearing, 50 minutes, the court heard a pair of appeals by the towns of Albany and Craftsbury to rulings from the state Public Service Board (PSB), which last year issued a certificate of public good to Green Mountain Power (GMP), allowing the project to go forward.

The court considered issues related to the amount of noise nearby residents may experience, the propriety of allowing GMP to begin construction before required easements were in place, if GMP had started building too late to get federal tax credits, and whether the due process rights of neighboring towns were violated by the PSB’s decision not to hold hearings on how to mitigate the effects of unauthorized logging on wildlife in the area.

If anyone watching the arguments was in any doubt as to which side had a greater burden, the bearing of the primary lawyers gave more than a clue. Jared Margolis, who represented the two towns, worked mightily to cram his pleadings into the time allotted him, speaking so fast that at one point Chief Justice Paul Reiber asked him to slow down a bit.

The chief justice said he understood that Mr. Margolis had a lot to fit in, but he and the other justices were having a hard time following the argument.

At one point in the proceedings Mr. Margolis was so carried away that, referring to an earlier Supreme Court decision, he called the justices “you guys.” The court appeared to take the lapse in customary formality in its stride, although many eyebrows were raised among the spectators.

On the other side, Peter Zamore, who spoke for GMP, appeared far more relaxed. He seemed comfortable enough with his chances to finish well before he ran out of time.

Mr. Zamore’s attitude was easy to understand. The Supreme Court has made plain in many rulings that it gives great deference to the decisions of the PSB, which it say has expert knowledge of the subjects under its jurisdiction.

Albany and Craftsbury, along with the Lowell Mountain Group, which had Brice Simon as its lawyer, were asking the court to overturn the certificate of public good for the project for a number of reasons.

One part of their argument held that the PSB made a mistake in accepting noise estimates from a GMP expert that may have underestimated the sound level coming from the turbines.

Like political surveys, such estimates have an upper and lower limit that represents the possibility of inaccuracy in measurement. Mr. Margolis argued that the upper limit, rather than the midpoint, should have been the basis on which the PSB decided whether the turbine noise would be acceptable.

Had it been, he argued, the noise at nearby homes would have been above the limit set by international health agencies.

Mr. Zamore said the issue was within the expertise of the PSB regulators, and added that however noisy the turbines might be in theory, in practice, GMP is required to operate them so they don’t violate noise standards.

Mr. Margolis also told the justices that the certificate of public good issued to GMP ought to be revoked because the company had told the PSB it had to begin construction on the project by August 2011 in order to finish in time to qualify for a federal tax credit. That credit, Mr. Margolis argued, was essential to provide energy at a price that would benefit the public.

The justices appeared skeptical of this claim. Associate Justice Marilyn Skoglund asked how the towns could be sure that GMP could not accelerate its construction schedule to meet the December 2012 deadline for the tax break.

Justice Skoglund seemed more receptive to Mr. Margolis’ claim that the PSB had violated the towns’ due process rights by refusing to hold a hearing about wildlife habitat. Trip Wileman, who owns the land on which GMP is building the wind project, widened a road on what was supposed to be part of a mitigation area to allow animals to move freely over Lowell Mountain.

When Mr. Wileman broke up the contiguous forest, Mr. Margolis said, the PSB should have held a hearing to consider what additional measures needed to be taken to preserve habitat for bears and other large animals in the area.

Instead, he said, the PSB relied on comments from a state expert conveyed to them in a letter from a state Agency of Natural Resources lawyer. This, Mr. Margolis argued, constituted hearsay evidence that should not have been considered under PSB rules.

Albany and Craftsbury asked for a formal hearing of the issue and were turned down by the PSB in a 2-1 decision. One of the Public Service Board members, John Burke, agreed that a hearing ought to have been called and said in a written dissent that he thought the towns’ due process rights were being violated.

Mr. Zamore told the justices that the towns, because they don’t own property affected by the PSB’s decision, have no right to due process in the matter.

He said that the PSB was competent to make a decision on the issue and the justices ought not to intervene.

In responding to Mr. Zamore’s arguments, Mr. Margolis said issues of wildlife management on the scale required by the Lowell project are beyond the PSB’s experience and expertise. He also disputed Mr. Zamore’s dismissal of his clients’ rights.

The case was heard by three justices, Chief Justice Paul Reiber and associate justices Skoglund and John Dooley. Associate justices Brian Burgess and Beth Robinson recused themselves from considering the case.

URL to article:  https://www.wind-watch.org/news/2012/04/04/lowell-wind-foes-make-their-case/