Maine Superior Court rules at last: for Fox Island Wind Neighbors and against state agency Maine DEP charged with enforcing wind turbine noise standards

After three years of litigation, a Maine Superior Court decision has finally found in favor of wind turbine neighbors complaining about excessive noise from three nearby 1.5 megawatt GE wind turbines. Although citizens across the United States living near wind turbines are complaining — including lawsuits against wind turbine operators — this is the first court case where a state judge has found against a state agency charged with enforcement; the Maine Department of Environmental Protection.

The judge’s decision follows the key claim of the plaintiffs who proved that FIW (Fox Islands Wind) was not complying with the State’s noise limits and that the DEP failed to enforce against the turbine operator or to require compliance. The immediate impact of the court decision is to remand to the state agency and work with neighbors to find an equitable way to measure and enforce against ongoing noise violations.

For years Fox Islands Wind Neighbors has felt betrayed by the DEP for not protecting them by enforcing against excessive wind turbine noise. Falling back on their own resources, neighbors were forced to do noise measurements to state regulatory specifications — often in extraordinary weather conditions — , then engage in a protracted administrative process to clarify for state regulators the deficiencies of antiquated rules; rules never designed to protect people from wind turbine noise. Throughout the lawsuit, the wind turbine operator, FIW (Fox Islands Wind LLC), stonewalled both the state and the neighbors. It failed to produce data and information about the noise from the turbines, thumbing its nose at due process, and when the neighbors proved at their own expense that violations were occurring, the wind turbine operator flexed political muscle to operate the turbines its own way.

The Vinalhaven wind turbines are permitted to operate at 45dbA at night time. In other parts of Maine, after complaints by neighbors and a public hearing process by the state of Maine, noise levels are 42dbA.

This decision is an important step in the neighbors’ long battle that began in late 2009 when the wind project commenced, threatening health and depressing property values. But it is hardly the last word. Fox Islands Electric Coop informed ratepayers (July 2013) that it has already spent more than $800,000 on behalf of the wind turbine operator’s legal troubles with the state.

The judge’s order also notes that that Patricia Aho, who worked for FIW’s law firm, Pierce Atwood, LLC previous to her appointment as Maine DEP commissioner, “… created an enormous amount of mistrust by the Neighbors as to whether their grievances can receive fair treatment by the Commissioner and the Department… Commissioner Aho’s continuing participation in deciding upon operational and complaint protocols could be viewed as antithetical to the common notions of impartiality which Maine citizens understandably expect from decision makers in Maine agencies.”

The wind industry has retreated from poorly sited turbine locations like those on Vinalhaven where wind shear and turbine placement present significantly more noise than predicted in the planning phase of the project. For example, Harvard Business School’s George Baker — former president of FIW and chief promoter of the project — assured neighbors and Maine DEP during initial permitting that turbine noise would be masked by wind rustling leaves. Baker, former Vice President of Renewable Energy for the Island Institute of Rockland, Maine, both minimized and ignored consultants who had warned of likely noise problems. In one Harvard Business School study of the project, Baker took pride in speeding the Vinalhaven project past likely objectors. Not one director of Fox Islands Electric Coop, Fox Islands Wind, or George Baker live within earshot of the Vinalhaven wind turbines.

Around the world communities impacted by wind turbine noise are pleading for lower noise thresholds and, also, for improved acoustic metrics compared to poor standards in effect, today. Fox Islands Wind Neighbors look forward to working with the DEP to formulate protocols that will assure compliance by FIW in the future.

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