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Maine Supreme Court upholds Land Use Commission’s grant of amended application for wind power project without holding a new public hearing  

Credit:  Patricia Salkin | Law of the Land | lawoftheland.wordpress.com 16 July 2012 ~~

In December 2009, TransCanada filed an application with the Land Use Regulation Commission (LURC) for a permit to construct a wind power project. The project included fifteen wind turbines as part of a forty-five megawatt wind energy facility. LURC initially held a public hearing in which the plaintiffs, Friends of the Boundary Mountains (FBM), raised several issues and persuaded the LURC to draft a decision denying of the application. However, prior to the scheduled vote on the draft decision, LURC granted TransCanada’s request to allow for an amended application. In response to the amended application, LURC solicited written comments from the public, but did not provide for a public hearing. After a 30 day public comment period, LURC voted to approve the amended application.

FBM argues that LURC violated its own rules by refusing to hold a public hearing. However, LURC’s rules clearly give it the discretion to hold or reopen a hearing. The rules allow for LURC to “elect” to reopen a hearing prior to the issuance of a final decision, there is no clause mandating it. In addition, the court also noted that an agency’s interpretation of its own internal rules will be given considerable deference. Although not argued by FBM, LURC’s decision does not violate any constitutional grounds of due process since they did allow for a period of public comments.

FBM also argues that LURC ignored several issues raised by it during the administrative hearings, including things like whether an offset of public subsidies were considered and whether the effects on wildlife were considered. However, there is no statutory provision requiring LURC to consider an offset of public subsidies and any effect toward the wildlife was minimal since the project fell within the statutory guidelines.

In addition, FBM further argues that LURC erred in interpreting the term “tangible benefits.” LURC considered the term to include proposed community benefits package and the grants to DOL and HPA. LURC’s determination is consistent with its stated policy, which includes “environmental and economic improvements attributable to the construction, operation and maintenance…”FBM cannot successfully make the argument that the creation of jobs, increased tax income for the state and benefits to local businesses is outside the scope of “tangible benefits.”

Friends of the Boundary Mountains v. Land Use Regulation Commission, 40 A.3d 947 (ME 4/5/2012)

The opinion can be accessed at: http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me53fr.pdf

Source:  Patricia Salkin | Law of the Land | lawoftheland.wordpress.com 16 July 2012

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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