October 26, 2012
Vermont

A divided Supreme Court upholds Lowell Wind permits

By Laura Carpenter | October 25, 2012 | The Newport Daily News | newportvermontdailyexpress.com

LOWELL – A divided Vermont Supreme Court Struck down several appeals by the Lowell Mountain group (LMG) and the Towns of Albany and Craftsbury. The appeals challenged the Vermont Public Service Board (PSB) orders regarding the Lowell Mountain Wind Project.

Green Mountain Power (GMP) received a certificate of public good (CPG) from the PSB to construct a 63 megawatt wind facility on three miles of ridgeline on Lowell Mountain. The project is highly controversial and has become an extensive legal battle.

Steve Wright of Albany, the president of the Ridge Protectors Inc., said Wednesday that opponents have spent close to $160,000 of donated private funds. He said the process includes educating the public.

Vermont Supreme Court Chief Justice Paul Reiber and Associate Justices Marilyn Skoglund and John Dooley denied all the appeals over the so-called Kingdom Community Wind.

However assigned justices Thomas Zonay and Harold Eaton did not fully agree with the majority on all issues.
The landowner leasing to GMP conducted some logging work in conservation areas near the project site. The PSB ordered remediation of the area. After the work was completed, a wildlife biologist said that the problems on the land caused by the logging were corrected. However, the LMG and towns wanted a hearing in order to cross-examine the biologist, but in a split decision by the PSB they were denied the request.

Reiber wrote that the groups did not establish that their right to due process was violated. But Zonay wrote,“The Board abused its discretion” by denying the towns and LMG the opportunity to cross-examine the biologist.

“I also agree with the majority’s conclusion that the towns have not established that the failure to hold a hearing (to cross examine the biologist) violated their constitutional right to due process. I am, however, unable to join the majority’s determination that the Public Service Board’s denial of the hearing to address (this) was a proper exercise of its discretion. Rather, I agree with the dissenting opinion of Board member (John) Burke that a hearing was necessary. The Towns’ repeated requests for an opportunity to cross-examine ANR’s expert should have been granted,” Zonay wrote.

The Towns and LMG had filed a motion to revoke the CPG, stating that the project was no longer economically viable because construction started after August 1, a date GMP had set for construction to begin. The motion stated that GMP would not finish in time to obtain the millions of dollars in Federal Production Tax Credits. The PSB denied the motion and the LMG and towns appealed to the VT Supreme Court, which in turn denied it.

The court also rejected the appeals on the noise levels, easement issues, and issues regarding environmental concerns.

This does not end the legal battle. The PSB is still considering an appeal on the storm water permit.