Maine Supreme Court Denies Appeals in Record Hill and Oakfield Wind Power Projects

The Maine Supreme Court issued two opinions Thursday rejecting appeals of permits issued for the development of the Record Hill Wind project in Roxbury, Maine, and the Oakfield wind power project in Oakfield, Maine.  Today’s opinions upholding the Maine Board of Environmental Protection’s approval of both projects mean that the projects’ permits are now final and non-appealable. 

The Court unanimously affirmed the Board of Environmental Protection’s determination that both wind power projects comply with all relevant permitting standards, including the state’s strictest sound limits.  The opponents had claimed that the Board was required to have held a public hearing, should have found that the projects would result in adverse health effects and didn’t satisfy standards related to decommissioning and financial capacity.  The Court disagreed, rejecting all of the opponents’ arguments.

Writing for the Court in Concerned Citizens to Save Roxbury et al. v. Board of Environmental Protection et al. (click to open PDF), Justice Ellen Gorman found that, with respect to the Record Hill Wind project, “the Board’s findings concerning the health effects of wind turbine noise are supported by substantial evidence in the record. The report of the [Maine Center for Disease Control] and the [Department of Environmental Protection’s] noise control consultant’s opinion both support the finding that the Record Hill Wind Project will not generate unreasonable adverse health effects.” 

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Maine Supreme Court Dismisses Final Appeal of Rollins Wind Power Project

The Maine Supreme Judicial Court has upheld the dismissal of opponents’ appeal of the permit issued by the Lincoln Planning Board for the construction of First Wind’s Rollins wind power project (the link will open a PDF of the decision).  The Law Court ruling issued yesterday means that the 60-megawatt Rollins Project now has all final, non-appealable permits needed for development.

The unanimous opinion affirmed a decision by the Penobscot County Superior Court, which had earlier upheld a ruling by the Lincoln Board of Appeals that the project opponents, Friends of Lincoln Lakes (“FOLL”), lacked standing to appeal First Wind’s planning board permit.  The Court found that FOLL had failed to show that it would suffer any particularized injury from the project or that it had participated in the planning board proceeding that it was attempting to overturn

The Law Court’s ruling paves the way for First Wind to start construction of the 40-turbine Rollins Project in Lincoln, Maine, and surrounding towns.  Verrill Dana attorneys Juliet Browne, Scott Anderson, Jamie Kilbreth and Gordon Smith represented First Wind in the appeal. 

ISO New England Executive Compensation Upheld

The U.S. Court of Appeals’ D.C. Circuit recently upheld ISO New England’s 2009 executive compensation in the face of a challenge by the State of Connecticut.  In Blumenthal v. FERC, — F.3d —, 2010 WL 2794293, Connecticut challenged ISO New England’s executive compensation as too high, arguing that the process by which FERC approved the compensation levels was flawed.  In 2009, ISO New England executive compensation ranged from $984,000 for ISO New England’s President to $319,000 for the Vice President of Information Services.  The Court expressed sympathy for Connecticut, noting that Connecticut’s “concerns are not without some basis,” but it ultimately concluded that, based on the Court’s limited standard of review of FERC decisions, “we cannot say that FERC’s decision jumped the rails of reasonableness.”

Northwestern Mass. Wind Project May Move Forward, Rules SJC

In a decision issued yesterday, the Massachusetts Supreme Judicial Court upheld a state agency’s approval for a wind developer to build two access roads that will allow for the construction and maintenance of a wind project in northwestern Massachusetts.

New England Wind, LLC will be able to commence construction on the two gravel access roads, with some conditions.  The developer must retain a compliance monitor and a wetlands scientist who will oversee the construction of the roads.  New England Wind must also submit reports on storm water management and the ecological status of any resource areas at issue.

The dispute began when New England Wind filed a notice of intent to construct the roads with a town conservation commission.  The commission approved the request to build the roads, which would cross several intermittent streams.  Following the approval, a Massachusetts Department of Environmental Protection magistrate heard a citizens’ group’s arguments that the access roads would impair the stability of the stream banks.  In a recommended decision, the magistrate sided with the citizens’ group.

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Suit Complaining of Odor May Proceed, Says Maine's Law Court

The Maine Supreme Judicial Court ruled on Thursday that a Saco resident’s complaint alleging a private nuisance based on odor fulfilled the legal requirements of a proper complaint, and should not have been dismissed.

Mark Johnston’s suit claims that Maine Energy Recovery Co., which operates a solid waste incinerator in Biddeford, commits a nuisance by allowing foul odors to reach Johnston’s property.  Johnston claims that he no longer opens his windows regularly in the summer time because, if he does, his house smells like garbage. He also does not use his backyard, and claims to suffer from headaches and respiratory discomfort due to the odor.

Johnston seeks damages for the harm he has alleged and the decrease in the value of his property, as well as an injunction to force MERC to stop committing the nuisance against his property.

The superior court had initially dismissed Johnston’s claim.  The Law Court’s June 10, 2010, opinion will allow the case to proceed.

The case is Johnston v. Maine Energy Recovery Co., L.P., 2010 ME 52 (PDF or HTML).

BEP Rejects Abutters’ Appeal of Oakfield Wind Power Project

The Maine Board of Environmental Protection voted Thursday, June 3, 2010 to deny an appeal of First Wind’s permit to build a 34-turbine wind energy project Oakfield, Maine.  The BEP rejected the abutters’ claims that the Department of Environmental Protection had not properly assessed the project’s potential sound, health and visual impacts in issuing the permit. 

The attorney for one of the abutters, argued unsuccessfully that the state’s noise regulations were inadequately protective with respect to wind turbine noise and should be ignored by the BEP.  The BEP was also not persuaded by the abutter’s allegation that the DEP and the Mainer Center for Disease Control had conspired to advocate for wind energy development and disregarded purported public health concerns.  In a separate vote, the BEP denied the appellants’ request that the BEP hold a public hearing regarding the health effects of wind energy developments.  Both votes were by a tally of 7-1.

The BEP’s ruling was based in part on evidence that the accuracy of First Wind’s sound modeling has been verified by measurements taken of turbine sound emissions at the operational Stetson facility.  Those measurements showed that actual sound levels from working wind turbines were markedly quieter than the sound levels predicted by pre-construction computer modeling.

This was the third appeal of a grid-scale wind power project heard by the BEP.  In each of the appeals the BEP has rejected the appellants’ claims and upheld the project permit.  Verrill Dana attorneys Juliet Browne and Gordon Smith have represented the project developers in all three appeals to the BEP.   

The abutters can appeal the BEP’s denial of the appeal to the Maine Supreme Judicial Court within 30 days of receiving the BEP’s written order. 

Maine Supreme Court Dismisses Appeal of Rollins Wind Power Project

In the first case of its kind to reach the Maine Supreme Judicial Court, a lawsuit challenging a permit issued by the Maine Department of Environmental Protection for the construction of the Rollins Wind Power Project was dismissed on all counts on March 11, 2010.

The order affirmed a decision by the Board of Environmental Protection to deny an appeal filed by the Friends of Lincoln Lakes (“FOLL”) and several individuals challenging the Rollins Project permit.  The Board of Environmental Protection had unanimously rejected the FOLL appeal on the basis that the DEP had found that the Project would not have an undue adverse impact on the environment, specifically with respect to sound, health and wildlife. 

The Court noted that “FOLL essentially conceded at oral argument that the Board’s findings were supported by substantial evidence in the record.”

The Law Court also found that FOLL’s right to equal protection was not infringed by wind development laws that prevent the BEP from assuming original jurisdiction over applications for expedited wind energy projects and that allow for direct appeal of Department and Board decisions to the Maine Supreme Court.

The ruling was a victory for First Wind, which is developing the 60-megawatt Rollins Project in Lincoln, Maine, and surrounding towns.  Verrill Dana attorneys Juliet Browne, Scott Anderson, and Gordon Smith represented First Wind in the appeal. 

A copy of the decision, Friends of Lincoln Lakes v. Board of Environmental Protection, 2010 ME 18, — A.2d —, may be found here.