On March 5, 2013, the Maine Supreme Judicial Court (the “Law Court”) issued a decision in which it invalidated Saddleback Ridge Wind, LLC’s (“Saddleback”) permit to construct the Saddleback Ridge Wind Project (the “Project”). The decision raises concerns for any applicant for a Maine environmental or land use permit that standards may change in the middle, or even at the end, of its licensing process.
Saddleback filed its applications with the Maine Department of Environmental Protection (the “Department”) on October 26, 2010, seeking a permit to construct the Project in the towns of Carthage, Canton, and Dixfield. The applications described the development as a “12-turbine, 33 megawatt wind energy project and associated transmission line and substation.” Included in the applications were a noise impact study and a visual impact assessment. Opposing the applications were Friends of Maine’s Mountains, Friends of Saddleback Mountain, and several individuals (collectively, “Friends”).
After a public meeting and input from additional individuals and organizations both for and against the Project, the Department issued a permit to construct the Project on October 6, 2011. Friends then appealed the Department’s decision to the Board of Environmental Protection (the “Board”). On February 18, 2012, the Board issued an order affirming the Department’s approval of the permit application, and specifically affirmed the Department’s decision to apply the nighttime hourly sound level limit in effect at the time of the order, which was 45 dBA. In appealing the Board’s decision to the Law Court, Friends advanced three constitutional claims, and also argued that the Board abused its discretion when determining which nighttime sound level limit to apply to the applications. While it had little trouble rejecting Friends’ constitutional claims, the Law Court proceeded to scrutinize the Board’s application of the 45 dBA nighttime hourly sound limit.
In the end, the Law Court’s examination of the procedural history before the Board proved significant. On September 15, 2011, while Saddleback’s applications were pending before the Department, the Board provisionally adopted a noise rule amendment that, among other changes, lowered the nighttime hourly sound limit for wind energy projects from 45 dBA to 42 dBA. The rule amendment did not become effective, however, until June 10, 2012, when it received the required legislative approval. Five months after the Board’s provisional adoption of the rule amendment, the Board’s February 18, 2012 appeal decision affirmed the Department’s initial decision to apply the 45 dBA limit to the Saddleback Ridge Wind Project. This proved critical to the Law Court because the Project’s applications, while presenting evidence that the Project complied with the 45 dBA limit, presented no evidence that the Project would comply with the 42 dBA limit, likely because neither the DEP nor the applicant thought the provisionally adopted noise limit was ever intended to apply to an application already pending on the date of the rule change. The Law Court did not address the fact that the Board had applied the nighttime limit required by Department rule at the time of its decision.
Because the Board applied the 45 dBA nighttime sound limit to Saddleback’s application five months after the Board had provisionally approved a rule change that lowered that same limit to 42 dBA, the Law Court held that the Board “failed to meet its statutory obligation to protect the health and welfare of the Project’s neighbors.” Therefore, the Law Court concluded that the Board had abused its discretion in affirming the Department’s application of the 45 dBA limit, and that the permit granting approval for the Saddleback Ridge Wind Project is thus invalid. The Law Court directed the Board and the Department to conduct further review of Saddleback’s applications using the 42 dBA nighttime sound level limit.
While the Law Court did not specify whether the 42 dBA limit should be retroactively applied to projects approved before the rule amendment’s adoption, any project approved and constructed prior to the amendment’s adoption likely has a strong argument against retroactive application of the 42 dBA limit.