October 20, 2012
Vermont

Lowell wind: Supreme Court strikes down appeals

A divided Vermont Supreme Court on Friday upheld the certificate of public good for the Lowell wind project and rejected appeals by the towns of Albany and Craftsbury and the Lowell Mountain Group.

The majority ruling, written by Chief Justice Paul Reiber with Associate Justices John Dooley and Marilyn Skoglund, denied all the appeals over Kingdom Community Wind. The majority opinion supported all the decisions by the state utility regulators on the Vermont Public Service Board (PSB) so far.

In a minority opinion, specially assigned justices Thomas Zonay and Harold Eaton concurred in part with the majority. However, the two dissented on one key area, saying the opponents deserved to have a hearing when logging and road-widening was done on land that was to be conserved in mitigation for the wind project.

The PSB is still considering appeals over the stormwater runoff plans and water quality plans. The opponents said they will appeal.

Green Mountain Power wants to have all of its 459-foot-tall turbines on the ridgeline operating by year’s to secure $44 million in federal production tax credits.

“We are pleased the Supreme Court found that the PSB acted properly in approving Kingdom Community Wind, a project that is the lowest cost new renewable energy available to our customers,” said Dorothy Schnure, spokesman for GMP.

“The court rejected the arguments made by Lowell Mountain Group and the towns of Albany and Craftsbury,” she said Friday.

“The court noted the PSB’s extensive review, which included four rounds of testimony, several site visits, a public hearing, nine days of technical hearings, more than 40 witnesses, a 179-page order and 45 conditions on the certificate of public good.

“This is great news for Vermonters, who have said they want more renewable resources in the state,” she stated.

Steve Wright of Craftsbury, whose town appealed the decision, said the decision is disappointing but not surprising.

“It follows the pattern that the Supreme Court has used for years. … They give credibility and latitude to the board,” Wright said.

The cost to appeal is about $150,000 to $160,000, Wright said, all paid for in donations to the towns.

The opponents vow to keep fighting until the legislature changes the laws over wind projects.

Annette Smith, independent candidate for governor and a wind opponent, called the decision “disappointingly predictable.”

“What they did undercuts Vermonters’ faith that the review process is fair and equitable,” she said.

“We will affirm the board’s findings unless they are clearly erroneous, and an appellant bears a heavy burden of demonstrating clear error,” Reiber wrote for the majority.

“Our deference extends to the whole of the board’s certificate of public good decision, and we reject the towns’ assertion that we should not defer to the board with respect to certain issues … such as habitat fragmentation,” Reiber wrote.

In another appeal, the opponents told the high court that the Lowell wind project was no longer economically viable because construction had not begun by GMP’s targeted starting date of Aug. 1, 2011.

And the opponents said that logging work last fall on land intended to be conserved in mitigation for the wind project required a hearing over non-compliance by the PSB, which the board rejected in a split decision. That prompted another appeal to the Supreme Court.

The majority of the justices agreed with the PSB that the noise monitoring plan and standards are sufficient and that GMP did not have to do modeling before construction.

The court majority said it was a PSB decision to let GMP pick a turbine model after the certificate was awarded.

The majority agreed with the PSB that an agreement between GMP and the state Agency of Natural Resources would limit impacts on uncommon mountain ecological niches.

The opponents said that the PSB should not have extended a deadline for GMP to buy easements west of the Lowell ridgeline, saying it was GMP’s fault that it needed more time.

“We conclude that the board acted within its discretion” to change the deadline on the easements, Reiber wrote.

“When the Board became aware that holding up the project based on GMP’s inability to meet the deadline for obtaining easements could potentially threaten the viability of the project itself, it had the discretion to extend the deadline to ensure the project’s viability.”

The opponents complained that logging work done on land to be set aside for mitigation required a hearing.

“We conclude that the Towns have failed to meet their burden of demonstrating that the Board violated their constitutional right to due process by not holding an evidentiary hearing …” Reiber wrote.

“The Towns do not challenge the Board’s finding that their expert was unqualified, which was the basis for the Board’s conclusion …”

In his dissenting opinion, Zonay disagreed, saying the PSB “abused its discretion.”

“Rather, I agree with the dissenting opinion of Public Service Board member (John) Burke that a hearing was necessary. As such, I would remand the matter for a hearing … where the Towns would, at a minimum, be afforded an opportunity to cross-examine the Agency of Natural Resources (ANR) expert,” Zonay wrote.

“Although I agree with the majority that the Towns have failed to establish a violation of due process, I cannot escape the conclusion that the underlying reasons for requiring an opportunity for cross-examination where ‘important decisions turn on questions of fact’ applies with such force here that, in denying the Towns such an opportunity, the Board abused its discretion.”

Zonay chided the majority of justices for not following a 50-year-old high court precedent.

The opponents argued finally that the PSB did have jurisdiction to revoke the certificate while their appeal was pending.

“Rather, the Board noted that the project, which benefited the public, might be in danger if GMP were not allowed to move forward with construction and obtain the tax credits because the economic viability of the project for GMP would be less tenable.

“Accordingly, the Board did not err in denying the Towns’ motion to revoke the CPG,” Reiber wrote.