January 5, 2015
Vermont

Court dismisses appeal of wind project

By Patrick McArdle, STAFF WRITER | January 4, 2015 | www.vermonttoday.com

A U.S. District Court has rejected the appeal of a citizens group which sought to deny the permits granted by the U.S. Forest Service for the Deerfield Wind project to put up wind turbines on national forest land in Searsburg.

In a 28-page decision released Christmas Eve, Judge Gavin Murtha denied all the claims made by the group, Vermonters for a Clean Environment, or VCE. The group’s members include Annette Smith, a prominent environmental activist, and Tyler Resch, a former member of the Shaftsbury Select Board.

The 15-turbine wind project is being proposed by Deerfield, a subsidiary of Iberdrola Renewables, the U.S. division of a Spanish company. On its website, Iberdrola describes itself as having a history that goes back more than a century.

Paul Copleman, a spokesman for Iberdrola, said last week that company officials had not had much time to review the decision in depth yet because it was released during the holiday season. However, he said Iberdrola was happy with the judge’s ruling.

“We’re pleased and hopeful that this clear ruling sets us on a path to move the project forward,” he said.

In a statement, Resch said he still opposed the wind project.

“This disappointing decision opens the way to the desecration of some extensive and beautiful uninhabited southern Vermont wilderness, an irreplaceable resource for recreation and tourism,” he said.

“The decision will add to the press of ‘civilization’ pushing aside the habitat of bear, deer, birds and bats,” Resch added. “It also makes a mockery of the concept of congressionally designated wilderness areas.”

Permits for the project, which originally called for 20 to 30 turbines, were first requested more than 10 years ago. By the time the Forest Service approved a special permit for the wind farm in 2012, the proposal had been adjusted to 15 turbines, seven on a ridgeline east of Route 8, where there were already 11 wind turbines, and eight on the ridgeline west of Route 8.

VCE asked the U.S. District Court to block the permit granted by the Forest Service or send it back for further environmental study.

At a hearing in Brattleboro in July, VCE attorney Stephen Saltonstall argued that the Forest Service was ignoring the National Environmental Policy Act and the potential harm to the view, the bats that live in the area and the nearby George D. Aiken Wilderness.

In his decision, however, the judge denied all the claims made by VCE.

Murtha cited previous court findings that concluded the decision of a federal agency such as the Forest Service could only be overturned if the decision was “arbitrary, capricious (or) an abuse of discretion.” He said the court couldn’t substitute its own judgment for that of the agency.

The decision also points out that the Forest Service was not obligated to reject the proposal just because there were some impacts to the environment, if those impacts were identified, acknowledged and minimized.

The impact to the Aiken Wilderness was identified by the Forest Service, but its decision showed confidence that the project’s design criteria and the requirements of a certificate of public good, which the Public Service Board issued in 2009, would be sufficient to minimize the impact.

The permit appeal asked for further study of the impact on the bat population. The mortality rate of bats affected by white-nose syndrome increased dramatically after the Forest Service’s study, on which its decision was based, was completed.

Murtha noted a supplementary report from the Forest Service finding that the wind project’s impact on the bat population was not tied to the estimate of white-nose syndrome deaths.

“The Forest Service, through the (supplementary report), acknowledged and considered the increased estimate and determined it did not render the existing analysis of potential impacts inadequate,” Murtha said.

Smith, in an email, disagreed with the court’s decision and said “a lot has changed” since PSB approval was granted in 2009.

“We have all learned from Sheffield, Lowell and Georgia Mountain, especially about how far the noise travels and how destructive it is,” Smith said.

“The (Public Service Board) has the opportunity to use its improved knowledge as it re-evaluates the use of taller turbines with longer blades and how that can cause harm to neighbors, wildlife, and destroy the qualities that created the George D. Aiken Wilderness,” she said.

Copleman said because the decision was released only recently and at the end of the year, he had no information yet on when the next steps for the project might take place.

URL to article:  https://www.wind-watch.org/news/2015/01/05/court-dismisses-appeal-of-wind-project/