High Court reverses decision against DEP in Fox Island Wind case 

Vinalhaven – The Maine Supreme Court May 7 sided with the Department of Environmental Protection, ruling the commissioner’s decision to weaken noise restrictions for an island wind project was based on evidence and within the agency’s discretion.

The court reversed a 2014 Kennebec Superior Court decision that ruled DEP Commissioner Patricia Aho was in error when she weakened noise restrictions for Fox Island Wind on Vinalhaven.

Justice Michaela Murphy ruled in March 2014 that Aho failed to provide evidence or reasoning for her decision to focus on Fox Island Wind project’s noise violations from a two-night period rather than as a whole. Murphy, in her order, also added the commissioner’s past work for a firm representing the wind project created mistrust in the community.

Murphy ruled in favor of Fox Island Wind Neighbors, who petitioned the court in 2011, challenging Fox Islands Wind’s compliance with noise regulations.

The state filed an appeal of Murphy’s decision based on four points, including whether the agency’s action is subject to judicial review, whether a third party has standing to challenge the action, and whether the separation of powers allows the court to review the department’s action.

The Supreme Court ruled the agency’s action is subject to review as the conditions were amended.

The High Court, which heard oral arguments in December, ruled the department did not violate the neighbors’ First Amendment rights, as the group claimed, with the condition compliance order issued by the DEP. The plaintiffs said the order to the wind project was retaliation for their complaints.

The Justices concluded that although the neighbors were engaged in protected activity when lodging noise complaints against the wind project, the issuance did not deter them from exercising their rights further. They also agreed that the compliance order issued to Fox Island Wind was within the agency’s discretion and was based on evidence.

The petitioners contended Aho acted on political motivation when she scaled back noise reduction requirements, acting against the advice of her staff.

In 2010, the DEP issued a formal non-compliance letter to Fox Islands Wind based on a specific complaint lodged by neighbors that on two nights in July, the turbines exceeded the night time sound limit. In 2011, Fox Islands Wind said it would reduce the sound only when meteorological conditions were similar to those on the nights cited, including times when the wind was blowing from the southwest. The department decided the Fox Islands Wind response was inadequate and drafted a counterproposal with provisions to ensure compliance with the noise rule, which Fox Islands Wind objected to.

The neighbors said the restrictions imposed by the agency did not go far enough to combat noise violations that could occur at another time, when the wind direction is different.

In June 2011, Aho took over as acting commissioner of the department. She had started working at the department earlier that year after employment as a lobbyist for Pierce Atwood, the firm representing Fox Islands Wind.

The fact that Aho was previously employed by Pierce Atwood, and that the order was issued in terms highly favorable to Fox Islands Wind do not, by themselves, prove bias, Murphy said in her ruling.

However, Murphy said the court recognizes the difficulties created by Aho’s continued participation in the matter, in light of her former affiliation with the firm. Aho’s participation was called antithetical to the notion of impartiality as expected by state agencies, the ruling said.

Murphy said the compliance order, issued by Aho 10 days after her appointment as commissioner, does not even attempt to explain the reasoning behind her decision.

The DEP’s defense is Aho based her decision on what was certain, as opposed to what is uncertain.

The petitioners asked the court to vacate the order and to replace it with an order drafted by DEP staff. The staff prepared a draft order requiring submission of data and requiring Fox Islands Wind to post operational sound and meteorological data on a website for public review.

The neighbors argued that under regulations for a small-scale wind energy development, the Fox Islands Wind Project must include a quiet area, located “where the daytime pre-development ambient hourly sound level at a protected location is equal to or less than 45 decibels and/or the nighttime pre-development ambient hourly sound level is equal to or less than 35 decibels.”

In that quiet area, according to the neighbors’ petition, sound levels from the turbines at any parcel of land containing a residence, or up to 500 feet from a residence or sleeping quarters, must be capped at 55 decibels between 7 a.m. and 7 p.m., and at 45 decibels during nighttime hours.

In May 2013, the department found Fox Islands Wind is operating in compliance with the department’s noise regulations, said court papers.