In late 2008, I began working with the Friends of Lincoln Lakes on their resistance to the Rollins Ridge industrial wind facility. My, how naïve we were in those early days! I have represented community groups, and individuals who were opposing various inappropriate industrial developments in their communities, including the terrible proposed LNG facilities in Washington County. While Downeast LNG is still plugging along, trying to get through various levels of federal and state approval, the awful Quoddy Bay LLC project, slated for Pleasant Point, was sent packing. We were prepared to put in the time, money and energy to expose how terrible the Rollins Ridge project would be for Lincoln and the surrounding communities, just as folks had done with Quoddy Bay LLC. What we did not know, however, was that the fix was in, that industrial wind was given preferential status in Maine and was pretty much exempted from the processes that other energy facilities had to slog through. Former Governor Baldacci, and his semi-secret Wind Energy Task Force, had made very sure of that.
In 2007, John Baldacci appointed the members of the Wind Energy Task Force. Their charge was clear – make sure that industrial wind projects get permitted, easily, quickly, relatively cheaply and, most importantly, in those communities that would put up the least resistance to the intrusive industrial developments. It was a travesty that even some of the most respected environmental organizations in the state, such as the Appalachian Trail Club (ATC) and the Natural Resources Council of Maine (NRCM), participated in this process. And participate they did, not only willingly but enthusiastically. “Big Green,” as some have taken to calling these, and other environmental organizations that operate in Maine, basically stuck their collective heads in the ground and refused to critically look at the potential harm to wildlife, raptors and bats, humans and communities that these projects would cause.
While there were objections raised to the 2010 Kibby II project, sited in the Western Mountains, by the ATC, the Audubon Society and NRCM, the developer, TransCanada, after being “shocked” that anyone objected to the project, and even more shocked that LURC (now the Land Use Planning Commission) would reject their application, reconfigured the project. Big Green then pretty much dropped their objections.
There is, of course, a history of Big Green receiving considerable financial support from industrial developers. In 2014, according to their own website, Maine Audubon received at least $10,000 from First Wind, $5000 from Reed and Reed, industrial wind contractors, $2500 from Central Maine Power, $1000 from Patriot Renewables and from Cianbro, $500 from law firm Verrill Dana, where Juliet Browne, industrial wind attorney and member of the Wind Energy Task Force, is a partner.
It is commendable that Maine Audubon lists their corporate donors on their web site. However, it is not so easy to identify the corporate donors of NRCM, the Sportsman’s Alliance of Maine (SAM), the ATC, or other Big Green organizations. SAM has listed First Wind as a major corporate sponsor, and there have been First Wind ads on the SAM web site. Likewise, after First Wind completed the Stetson Wind project, they made a $100,000 donation to the Forest Society of Maine, ostensibly to create a fund to “provide grants to businesses, groups, and communities to maintain and enhance outdoor recreation opportunities in the Baskahegan Stream Watershed.” Crony Capitalism/plantation Maine. Paul Ackerman, The Times Record, February 24, 2015.
While the Conservation Law Foundation, one of the biggest apologists for industrial wind energy in Maine, likely gets a significant amount of contributions from industrial wind developers, it also has the advantage of having a for-profit entity called CLF Ventures, which advises industrial energy developers on the “licensing process.” One such client is Horizon Wind, developer of the Aroostook Wind Energy project. As CLF Ventures states on their website, the existing transmission system in northern Maine “does not have the capacity to send more electricity from where it could be generated [that’s you “rural Maine”] to the markets where it is needed in southern Maine and Massachusetts. At least CLF Ventures is honest about their intent to help industrial wind developers colonize rural Maine to produce the energy needed in southern Maine and Massachusetts.
Perversion of the Legal Process
From my perspective as a land use attorney, one of the most egregious aspects of the Expedited Wind Energy Act was the manipulation and downright perversion of legal process. The Maine Rules of Civil Procedure, Rules 80(B) and 80(C), are very clear about what process is to be followed when appealing a decision by a state agency, such as the Board of Environmental Protection, or a municipal agency, such as a local planning board. Appeals are to be filed with the Superior Court within a specific time frame and that court hears the appeal. If the losing party wishes to appeal the Superior Court decision, they can appeal to the Law Court, the highest court in the state. That is how it works for LNG projects. For issues involving dams. For communications towers projects. For decisions regarding waterfront access. For the entire range of zoning issues. And, in fact, one of the most involved rezonings ever to take place in Maine, the rezoning of hundreds of thousands of acres of land owned by Plum Creek, took almost five years, including four weeks of full-time, detailed, extensive hearings, as well as a series of public meetings in various parts of the state. Once the rezoning was passed by LURC, four environmental groups appealed the decision to the Superior Court, and won in that court. Plum Creek then appealed to the Law Court, and ultimately prevailed. I was one of the appellate attorneys in that matter and while I was disappointed in the eventual outcome, I cannot complain that extensive legal process was not followed.
Yet the 2008 Expedited Wind Energy Act completely changed that process, but only for industrial wind facilities in the expedited wind area of the state, which is essentially the bulk of rural Maine. Now, anyone appealing a municipal or state agency decision regarding expedited wind is required to go directly to the Law Court, skipping the Superior Court entirely. Yes, expedited industrial wind gets to hop ahead of every other type of industrial development in the state. Fair? Hardly. Not only did the Task Force, at the behest of industrial wind developers, their attorney and Big Green, carve out preferential treatment for Big Wind, they penalized those individuals and communities that oppose a wind development, by requiring that they must bypass Superior Court, a less expensive appeal by far, and go directly to the Law Court, with its complicated rules and consequently higher legal costs.
In order to avoid municipal permitting, Big Wind has taken to siting their projects in the Unincorporated Territories of the state, where they are not forced to deal with those pesky Planning Boards but rather with seemingly acquiescent county commissioners who, when presented with the possibility of money that they can hand out to non-profits, fall all over themselves getting these projects approved. When the concept of community benefit funds, as these handouts are called, was discussed at one of the many industrial wind appeals before the Law Court, Justice Donald Alexander noted that “back home in Chicago, we call that bribery.”
The Myth of Green Jobs
Some politicians and corporations will use the twisted promise of jobs in order to justify their at best ill-advised, at worst corrupt decisions. And so-called “green jobs” are very alluring. The fact of the matter, however, is that industrial wind facilities offer very few long-term jobs. In my January 24, 2012 op-ed in the Bangor Daily News, I noted that “there is no acknowledgment that the jobs are short-term construction jobs, the economic trickle-down into the community is likewise short-term and the remaining jobs, at the facility itself, are few and are often [filled by] contract workers placed by the supplier of the turbines, not local workers.” I went on to suggest that providing short-term jobs at industrial construction sites will only lead to eventual job losses as guides, innkeepers, camps and restaurants in the vicinity of these industrial facilities lose tourist dollars and cut jobs.
Bad Behavior is Rampant
Ever since the founding of what was first named UPC Wind, now First Wind, by officers of the former Enron Corporation, the company has engaged in co-opting community members, buying up easements for unconscionably small amounts and imposing gag orders on those who do sell easements, keeping their plans purposely vague while paying off communities, and now, most recently, whining that the standard that the Commissioner, and then the Board of Environmental Protection, used regarding aggregate impacts of the Bowers Mountain project was impermissibly vague. The Bowers project is one of only two, out of more than 12 industrial wind projects, that were not granted a permit by the Commissioner. And, one of those two, the Passadumkeag project, was subsequently given a permit by the Board of Environmental Protection.
If one looks back at the relatively short history of industrial wind development in Maine, it becomes clear that the entire process of creating an Expedited Wind Energy Act, and the preferential status that went along with it, involved a process of secrecy, duplicity and “incentives.” As one example, Governor Baldacci’s Wind Energy Task Force was convened at the same time that Kurt Adams was head of Maine PUC. During his leadership of the PUC, Adams communicated with First Wind about going to work for them. In the final report of the Wind Energy Task Force, it was stated that “PUC Chairman Kurt Adams and agency counsel Mitch Tannenbaum, and DEP Commissioner Task Force member David Littell were particularly helpful to the Task Force” in presenting useful information regarding the energy system, transmission and similar issues. In May 2008, Adams left the PUC to start working at First Wind. Just one month before, while he was still at the PUC, he received 1.2 million units of equity in First Wind, similar to stock options. Illegal – perhaps; dishonest – definitely; self-serving – defines the term; conflict of interest – if you have to ask, you don’t know the meaning of conflict of interest. Yet, Attorney General Janet Mills decided that he had done nothing wrong. “Wind-swept task force set the rules”, Naomi Shalit, Pine Tree Watchdog, August 11, 2010.
Another particularly unsavory incident involved former Conservation Commissioner Patrick McGowan. McGowan directly contacted a LURC commissioner in the middle of LURC’s deliberations over the Redington project, prior to the passage of the Expedited Wind Act. McGowan asked the commissioner to “poll the other commissioners to determine if there was a way to get the majority to vote for the proposed project.” The commissioner, wisely, declined to do so. The attorney general determined that McGowan’s actions did not rise to the level of illegal ex parte communication, although he was ordered to undergo training on proper procedures. “Wind-swept task force set the rules”, Naomi Shalit, Pine Tree Watchdog, August 11, 2010.
This state has been sold to the highest (industrial wind) bidders. The only course is to fully repeal the Expedited Wind Energy Act as well as giving residents of the Unincorporated Territories more control over land use decisions in their communities. More broadly, though, the state needs to have a discussion about energy production, in general. The most egregious industrial offenses occur not because renewable energy is bad per se, although wind’s potential in Maine is, at best, mediocre. Rather, they occur due to the our reliance on the centralized nature of energy production, where industrial scale facilities are necessary. It is time to have the discussion about how we can transition the state into distributed generation where the difficult decisions are made by the communities themselves, thereby giving the benefits of any project to those most impacted by the downsides of the project, and also by greatly reducing the scale of any projects that are created. We can do this or, alternatively, continue to allow industrial developers from away to treat rural Maine as their own private fiefdoms.
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