Vinalhaven wind turbine noise complaint by neighbors moves closer to its day in court

In a new development related to the wind turbine controversy on Vinalhaven (ME), Superior Court Judge Michaela Murphy dismissed a motion for reconsideration filed by the state’s DEP (Department of Environmental Protection), and ruled in favor of Vinalhaven neighbors seeking relief from excessive noise. The Maine DEP and Fox Islands Wind, LLC, the industrial wind turbine operator, had asked the Court to reconsider its earlier ruling from March 9th that the case could go forward on the merits of its complaint. On May 22, 2012, the Superior Court Judge Michaela Murphy issued an Order denying a Motion for Reconsideration. Objection to Motion for Reconsideration

On July 28 2011, FIWN (Fox Islands Wind Neighbors) petitioned in Superior Court against the DEP (Fox Islands Wind Neighbors et al., petitioners v. Maine Department of Environmental Protection, Kennebec Superior Court Civil Action, Docket No. AP-2011-142). Fox Islands Wind, LLC, intervened and is represented by one of the biggest law firms in Maine. The court rejected the motion seeking to block the neighbors’ complaint, on procedural grounds.

Since November 2009 when the three 1.5 megawatt turbines commenced operation on the rural island, neighbors filed numerous complaints about excessive noise to no avail or relief. Also, the neighbors allege their First Amendment rights have been violated.

The wind turbine neighbors allege that agency actions effectively insulate FIW from compliance with noise standards and impose burdensome impediments to citizen noise complaints. At considerable personal expense — including the enmity of pro-wind advocates on the island — the neighbors have tried to obtain compliance by the wind turbine operators with state law and enforcement by the state regulator. As one of the earliest wind turbine installations in Maine, Vinalhaven neighbors discovered that the state’s own regulatory agency had difficulty in assessing, measuring, and imposing noise limits for wind turbines. They undertook to participate in good faith with the state to devise a protective and enforceable noise regulation for wind turbines. Their complaint alleges political interference reaching to the Governor’s office by Fox Islands Wind scuttled the neighbors’ and the efforts of DEP’s own staff to establish a more protective noise measurement protocol.

The Court rejected the State’s arguments that the neighbors did not have standing to challenge the DEP’s order under review. It firmly rejected the arguments of the DEP and FIW “that no Maine citizen who lives adjacent to a small scale wind development has the right to seek judicial review of either certification or post-certification actions of the DEP.” The Court further ruled that the neighbors (FIWN) had demonstrated standing by its claims that the DEP order under review “directly targets them and imposes burdensome if not impossible requirements for filing future noise complaints. FIWN claims that their legal rights have in fact been affected, in that they have lost rights ‘possessed by all other Maine citizens of this state living near wind projects.’

The First Amendment protects the important right of a citizen to petition government to enforce the law. It is unconstitutional for the government to refuse to enforce or take other actions that is designed to discourage petitions to enforce. The First Amendment count of the Petition for Review claims that the DEP Order under review was issued to retaliate against citizens on Vinalhaven who filed multiple complaints about noise. The neighbors allege that the DEP acted to discourage complaints by refusing to enforce the noise laws, imposing burdensome procedures for filing noise complaints against FIW, and by insulating FIW from effective accountability for compliance with the noise laws.

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