Portland Press Herald: Maine’s high court hears appeal over Vinalhaven wind turbine noise

Maine’s high court hears appeal over Vinalhaven wind turbine noise
But many of the justices’ questions focus on whether they should rule on Department of Environmental Protection decisions.
BY TUX TURKEL STAFF WRITER
tturkel@pressherald.com | @TuxTurkel | 207-791-6462

PORTLAND — A five-year fight by residents living near the Fox Islands Wind project on Vinalhaven got a high-stakes airing on Tuesday, as the Maine Supreme Judicial Court heard an appeal dealing with state noise regulations for wind turbines.

The residents, organized under a group called Fox Islands Wind Neighbors, were buoyed last spring by a lower court ruling that found the Maine Department of Environmental Protection erred in a decision by its commissioner on how to deal with noise complaints. The neighbors came to the state’s highest court hopeful that they could get the DEP to step up enforcement, and limit turbine operation during certain wind conditions.

Neighbors would like to limit the operation of three wind turbines on Vinalhaven during certain wind conditions in an effort to reduce noise.

Neighbors would like to limit the operation of three wind turbines on Vinalhaven during certain wind conditions in an effort to reduce noise. File photo courtesy Fox Islands Electric Cooperative

But the central issues considered by the justices Tuesday focused on narrower points of law. These included whether the specific DEP actions are subject to judicial review and whether third-party groups such as the neighbors have legal standing to challenge an agency’s action, just because they think it’s not strict enough.

A lawyer representing the neighbors, Rufus Brown, said his clients hope they also can get the DEP to instruct Fox Islands Wind to collect and report data that would allow it to curtail excessive noise in the future.

There’s no way to predict how the court will rule. But in questioning, most of the five justices hearing the case expressed skepticism about whether the judicial branch of government can order an executive agency to beef up its enforcement rules.

The hearing comes five years after the 1,700-member Fox Islands Electric Cooperative switched on its three-turbine community wind project on Vinalhaven, 12 miles out to sea from Rockland.

The $15 million project attracted national attention when it went on line. The largest wind farm on the New England coast, the turbines stand 388 feet from ground to blade tip and are visible from miles away. The project has been praised by renewable-energy advocates as a way for remote communities to get a handle on volatile, rising energy bills. But opponents of large-scale wind development said it was built too close to homes. And neighbors say they suffer at times from repetitive noises and vibrations that disrupt sleep, trigger health problems and erode the quality of island life.

The legal wrangling began in 2010, when complaints from neighbors led the DEP staff to recommend ways for the utility to reduce noise levels during certain wind conditions, in part through better monitoring. But Patty Aho, the incoming DEP commissioner, reversed the staff recommendation and issued a less-stringent compliance order. The neighbors appealed. Last March, a Superior Court judge ruled that Aho “had no rational basis or relevant evidence” to justify her action.

In April, the DEP appealed the Superior Court ruling. Among other things, it questioned whether Aho’s action is subject to judicial review. It also disputed the standing of a third party in a challenge of the DEP enforcement action.

Meanwhile, the electric co-op has accumulated more than $1 million in legal and regulatory expenses. Those costs have been passed on to customers in Vinalhaven and North Haven who use the wind power, blurring the projected financial benefits.

On Tuesday, Gerald Reid, an attorney for the DEP, said the neighbors could have appealed to the Board of Environmental Protection or gone to court with a nuisance complaint, but the judicial remedy they sought through greater DEP enforcement action wasn’t legal.

A core issue in this case is that regulating small-scale projects, such as the one on Vinalhaven, is chiefly a municipal duty. In this instance, the town declined to get involved with the wind turbines. Because there was no municipal land-use decision to appeal, Reid argued, the DEP’s certification of the project isn’t subject to judicial review.

“Can one branch of government tell another branch what to do?” Justice Ellen Gorman asked the petitioners.

Brown, the neighbor’s attorney, said it could, in some circumstances. But citing the separation of powers, Chief Justice Leigh Saufley said “the concept is very challenging” that the judicial branch could tell the executive branch to do more.

After the hearing, Brad Blake, a prominent wind power opponent, said the noise and low-frequency sound waves from industrial wind farms will remain an issue in Maine, regardless of the court decision. He said 40 or so communities have enacted noise ordinances, but that was never an option on Vinalhaven.

“I believe citizens need to have the right to be heard in a court of law, when the quality of their lives is at stake,” Blake said.

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