By JAY STAPLETON | The Connecticut Law Tribune | April 15, 2013 | www.ctlawtribune.comBy JAY STAPLETON | The Connecticut Law Tribune | April 15, 2013 | www.ctlawtribune.com
A proposal to build Connecticut’s first wind farm in the state’s Northwest Corner has been blowing around for several years. Now an appeal brought by a citizens’ group that opposes the project will be heard by the state Supreme Court in coming months.
The key question is whether the Connecticut Siting Council had jurisdiction when it approved the wind turbine electric generation project. Since 2010, West Hartford-based BNE Energy Inc. has been pressing forward with plans to establish the commercial wind farm in the Litchfield County town of Colebrook.
Nine 1.6-megawatt turbines on two neighboring sites on Rock Hill Road would produce enough electricity to power nearly 4,000 homes in Colebrook, Norfolk and Winsted, said attorney Paul Corey, a former energy lawyer at Brown Rudnick. He has plodded through myriad government approvals and regulatory obstacles in an attempt to see the plan to fruition.
Along the way, his client’s plan has been met with strong opposition. A group called FairwindCT, and property owners Michael and Stella Somers and Susan Wagner, have said they are concerned the turbines will harm health, wildlife and property values. They have made appearances at virtual every public meeting since the project was first discussed. These include permit application hearings before local zoning boards, including one for a 180-foot research tower that has since been built.
By state law, any energy project that produces more than one megawatt of energy falls under the jurisdiction of the Siting Council, rather than the municipality where the project would be built.
When the BNE Energy proposal was brought, the Siting Council listened to the town of Colebrook’s input, but made its own decisions. It approved the two locations on 180 acres that are separated by Route 44, but it declined to grant approval for a third site on Rock Hall Road. That denial was based on the potential disturbance the whirring turbines might have on Rock Hall, a luxury inn near Route 44.
“People in Colebrook are worried,” said Steven E. Byrne, an attorney with Byrne & Byrne in Farmington who advised the town of Colebrook when Corey requested a permit for the research tower. “It’s a scenic area and that’s a great asset. Do you want to be looking at these wind turbines?”
After the Siting Council granted approvals, the FairwindCT group appealed to the Superior Court in New Britain. Superior Court Judge Henry S. Cohn upheld the Siting Council’s decision last year. Because the legal issues to be decided could have implications for future wind projects in the state, the parties agreed it would be best to go right to the Supreme Court.
“Getting a decision from the Supreme Court will save time for everyone,” said Nicolas J. Harding, a lawyer with Reid & Reige in Hartford, who submitted the Supreme Court brief on behalf of FairwindCT. “What we’ve argued all along is that the Siting Counsel doesn’t have jurisdiction over wind projects.”
According to Harding’s brief, the Siting Council lacked jurisdiction because the proposed turbines would not generate electricity from “fuel,” as the word is used in the state statute governing energy projects. The opponents are arguing that wind is not a fuel. They point to case law which provides that fuel is “electricity, natural gas, petroleum products, coal and coal products, wood fuels, radioactive materials and any other resource yielding energy.”
The Siting Counsel is being represented by the State Attorney General’s Office, which has not yet filed a response to Harding’s brief in court. Corey said he is confident that his project will be permitted to continue. “We did everything that had to be done,” he said. “I’m confident the Superior Court decision will be affirmed.”•