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The Public Service Board, Industrial Wind Turbines, and the question of beauty  

Credit:  Deborah Bucknam | November 10, 2012 | vtlegalhelp.com ~~

Vermont’s signature environmental law, Act 250, in place now for over 40 years, has protected Vermont’s environment through a process that requires developers to demonstrate that that they meet certain statutory criteria before they can begin their projects.

Unfortunately, Act 250 does not apply to some of the largest developments Vermont has encountered in recent years. Industrial wind-tower developments on our ridgelines have an environmental impact far in excess of most Act 250 development projects in Vermont. However, instead of Act 250 proceedings at the district environmental commission with appeals to the Environmental Court the statutes for industrial wind projects require the Public Service Board review wind-tower applications and issue certificates of public good. The appeal from a Public Service Board proceeding is to the full Board, and then to the Supreme Court. The Public Service Board’s statutory mandate includes facilitating renewable energy projects such as wind power. To be sure, the Public Service Board is also required to consider environmental impacts of the development, but it would be as if Act 250’s legislative policies included encouragement of major shopping malls or industrial parks as well as determining whether the projects meet certain environmental standards.

The conflict between considering environmental impacts and encouraging industrial wind projects has been resolved by the Public Service Board in favor of industrial wind in virtually every case. The Board’s partiality toward wind development is demonstrated in its decisions regarding the aesthetic impact of industrial wind development. The Public Service Board is required to consider the same environmental factors that are outlined in the Act 250 statute. One factor, as set forth in 10 V.S.A. § 6086 (A) (8), provides that a board, agency, or court must determine whether the project has an “undue adverse effect on … aesthetics.”

The Vermont Supreme Court has adopted the Environmental Board’s three-part test to determine whether a project has an undue adverse effect on aesthetics, called the “Quechee” test. The second prong of the Quechee test is whether the project “offends the sensibilities of the average person.”

The Public Service Board has ruled in various wind-tower cases on what it has determined to be offensive to the sensibilities of the average person. In the Searsburg wind-tower case, the Public Service Board ruled that the average person’s sensibilities would not be offended by that wind project if he or she were properly educated. The Board stated: “With adequate information about the benefits of sustainable wind-generated electrical energy over other energy alternatives, the average person should not find this proposed project shocking or offensive.”

There are two problems with this Board guideline. First, because wind power is not sustainable without massive taxpayer subsidies, the statement makes no sense. Under this Board guideline, if Vermonters learned about the actual costs of wind generation, they would be more shocked and offended. According to the Wall Street Journal, based on statistics from the Department of Energy, wind generation received nearly 5 billion dollars in government subsidies in 2010, at a cost of $56.29 per megawatt hour, while the oil and gas industry received 486 million dollars in subsidies, at a cost of 64 cents per megawatt hour. Not only is wind generation not economically sustainable in Vermont, but it never will be for the simple reason that Vermont’s ridges are not windy enough. According to Dr. Benjamin Luce, chairman of the sustainability studies program at Lyndon State College, Vermont’s mountain ridges “possess surprisingly little wind resources.” Second, even if wind generation were sustainable in Vermont, its “benefits” are not related to aesthetics. Aesthetics is defined by the Merriam Webster dictionary as “a pleasing appearance or effect; beauty.” That has nothing to do with the efficacy of energy generation. If efficacy were the measure of aesthetics, oil and gas production facilities would be more aesthetically pleasing to the average person than industrial wind towers.

In the Searsburg case, the Board went on to clarify its holding concerning the average person’s sensibilities. It stated: “While some individuals who live close to the proposed project may find the proposed project offensive, they are not representative of the ‘average person’ because of their personal interest in the area and their opposition to change.”

There you have it. If only those unenlightened folks who love Vermont for its pristine ridgelines and peace and quiet were properly inculcated on the benefits of “sustainable” wind generation, they would find the towers aesthetically pleasing instead of grotesque. And the Vermonters who live near the industrial project should have no say as to whether the project is aesthetically offensive, because they live too near the project and they are not forward enough in their thinking.

The Board’s standard for determining whether an “average person” would be offended by industrial wind turbines on their ridgelines is a mixture of elitism and confused thinking. It is certainly not a legal benchmark against which courts could measure.

The Board did no better in the Sheffield wind-tower petition. It issued one paragraph concerning the second prong of the Quechee test in a 118-page decision. In that paragraph, the Board wrote : “In a previous docket, we stated that consideration of wind generation facilities ‘requires a balancing of two fundamental state policies: promoting in-state renewable resources, and protecting Vermont’s ridgelines.’ A large number of the public comments received in this Docket focused on the fact that the Project would impair the aesthetic qualities of the ridgelines. We recognize that scenic qualities of the area are important to its residents and there will always be some resistance to any change in the landscape. However, the Quechee test does not guarantee that the aesthetic qualities of an area will not change. The majority of the views of the Project are from a distance such that the size would not be overwhelming. Viewed from such distances, the average person would not find the scale of the Project shocking or offensive.”

There you have it again. Folks who live in rural Vermont because of its beauty and quiet are “resistant to change” in the landscape. Therefore, according to the Board, there is no undue aesthetic impact on the area. The Board’s reasoning bears no relation to whether an average person would offended by the ugliness of industrial wind towers.

The Board’s holdings demonstrate that it is utterly indifferent to the aesthetic impact of industrial wind turbines in Vermont, particularly in the Northeast Kingdom.

The State wants wind energy no matter what the cost to its ridgelines or residents, and the Public Service Board is a willing participant in this charade.

Source:  Deborah Bucknam | November 10, 2012 | vtlegalhelp.com

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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