KENNEDYVILLE – Opponents of wind turbines in Kent County are in for a protracted battle that will be expensive and difficult to win, they were told last week at a public forum held at the firehouse here.
Victory is not impossible, however. This spring, a Texas firm indefinitely suspended its plans to build wind turbines in Somerset County in the face of growing opposition that included the U.S. Department of Defense.
Kent County’s Commissioners are unanimous in their opposition to Apex Clean Energy’s plan to build 25 to 35 turbines – some as tall as 500 feet – on farmland in the center of the county, and the District 36 delegation also has joined the fray. But the legion of Kent County residents who are against what Apex is calling the Mills Branch Wind project don’t have an ally as formidable or with as deep of pockets as the U.S. military.
Not yet, anyhow.
“Knowing what you know, get your ducks in a row,” Theresa Czarski, an attorney on staff with the Office of People’s Counsel, told a standing room-only crowd at the Kennedyville firehouse Thursday, June 11. “The key is to stay on top of things.”
Czarski was the invited guest speaker of Keep Kent Scenic, the grassroots organization that has taken the lead in opposing Apex’s wind farm.
She explained her role – to ensure that residential consumers of electric and other utilities receive due process – and how a private company like Apex that wishes to provide essential public services navigates the Maryland Public Service Commission.
Apex has not submitted an application with the PSC, though it has been gathering data and has approached property owners about signing leases.
Apex must acquire a Certificate of Public Convenience and Necessity from the PSC before it can build a generating facility or transmission line.
The process starts when the application is filed. Until that time, said Czarski, the applicant generally keeps its information “close to the vest.”
The applicant files its application with the PSC and serves copies on state agencies that include the Office of People’s Counsel, the Department of Natural Resources and the Maryland Energy Administration – as well as affected public utilities and local government officials.
“The initial filing is in the hands of the applicants, when it is most advantageous to them,” said Czarski. “Once they file, everyone else scrambles.”
Usually within 30 days of filing, the Public Service Commission considers the application at its weekly administrative meeting and assigns the case to a public utility law judge.
The public utility law judge will set a date for a prehearing conference, which is when parties enter their appearances and set a schedule for the case. The judge also will set a deadline to receive motions to intervene.
An individual may file a motion to intervene “pro se,” meaning the individual could represent himself without a lawyer. Or, the individual could chose to hire an attorney.
Groups, associations and corporations that plan to actively participate by filing testimony or by cross-examining witnesses are required to be represented by an attorney.
Czarski said that an individual can seek “interested person” status so they can receive copies of filings to follow the progress of the case. But since almost every document filed is available publicly on the Public Service Commission website, fewer people avail themselves of this option.
If an applicant did not include testimony with the application, generally it will be required to file testimony on a certain date.
Other parties have the option to file expert witness testimony in response. The state Department of Natural Resources and the Power Plant Research Program have an obligation to file testimony with their recommendations.
An evidentiary hearing will be held, which is when witnesses will be cross-examined.
There will be at least one nighttime public hearing in the area of the proposed project – the other hearings are in Baltimore – so that the public can make comments on the record.
In the case of Apex’s Mills Branch Wind proposal, the Kent County Commissioners will be invited to sit with the Public Service Commission. Czarski said the local officials’ opinions “have to be taken into consideration.”
If no settlement is reached, each party will file briefs.
Usually, a proposed order is issued about 30 days after the close of the record and briefs.
A party may appeal the findings in the proposed order to the PSC. If no party appeals, the order becomes final.
Even after a final Public Service Commission order, a party may appeal to the circuit court, said Czarski.
Appeals may be taken up the line to the Court of Special Appeals if a party is dissatisfied with the circuit court decision.
Czarski said the role of the Office of People’s Counsel has become “truncated” since 1999 when the the Maryland General Assembly enacted legislation deregulating the generation and supply of energy. “Generally our role is to make sure that everyone receives proper notice and an opportunity to be heard.”
She said the PSC’s role also is very limited in the post-deregulation environment. “It will depend on what the PPRP folks find. … What you bring to the table.”
In comments that were directed to an audience that appeared to be mostly anti-Apex, Czarski said: “I encourage you to be as active as possible, to get involved, to make your views known.”
As a general order of business, she said it was a good idea to check weekly on the Public Service Commission website to follow the case schedule.
The June 11 forum was sponsored by Keep Kent Scenic, the Eastern Shore Land Conservancy, the Kent County Farm Bureau and the Queen Anne’s Conservation Association. Various representatives spoke out against Apex.
“Apex has figured out a way to get around local control by going to the Public Service Commission,” said Bill Graham, one of the organizers of Keept Kent Scenic. “We are not unfriendly to green industries. We are definitely pro-green energy. We just feel that certain energy sources – like 500-foot-tall turbines – don’t comply with Kent County zoning and the comprehensive plan.”
Jennifer Debnam, president of the Kent County Farm Bureau, said her organization’s “primary concern is that this will not be a local control issue.”
Jay Falstad, speaking for Queen Anne’s Conservation Association, said Mills Branch Wind – proposed for farmland south of state Route 213 and north of state Route 291 – would destabilize the region. “Once it gets a foothold in Kent County, it would march down the Shore,” he said.
“We stand with our friends in Kent County and are going to oppose this with everything we have,” Falstad added. “Opposing this is going to take a true community effort. It’s going to take everyone. … We all have to work together.”
Frank Lewis, of Keep Kent Scenic, said wind energy has its place, “but not in Kent County.” He said the negatives that come with it – noise, vibration, degradation of the quality of life, lowering of property values and threat to various large birds – “would be a major problem for people who live here.”
Acknowledging the rights of individuals to put turbines on their property, Lewis said there is a bias in favor of wind farms because Maryland’s renewable portfolio mandate requires utilities in the state to procure from renewable sources 20 percent of the electricity they supply to retail customers by 2022.
“The process is fair, but not entirely balanced,” he said. “We’re determined to fight this any way we can.”
State Sen. Steve Hershey Jr., during the question-and-answer session that followed Czarski’s presentation, pointed to a “strong renewable energy coalition in Maryland that is realizing it cannot get to the standards with only solar power.”
“How do we stop this in the future?” someone asked from the audience.
“I’m not sure,” said Hershey R-36-Upper Shore. “We have to maintain control” of the renewable energy subsidies. “The sentiment is there … recognizing that rural counties do not want to see these projects.
“We are definitely keeping an eye on it. Our delegation made very sure that the county commissioners’ views were heard in Annapolis,” he said.
Hersey submitted a bill late in the 2015 General Assembly session that would have ensured local control over Mills Branch Wind. The bill would have barred the Public Service Commission from granting a Certificate of Public Convenience and Necessity to Apex without the county commissioners having first signed off on the project. The bill failed to get out of committee.
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