Maine court interprets wind energy law

Thursday, December 3, 2015

Maine's highest court has issued an opinion interpreting Maine's laws governing wind energy project development.  The opinion, Champlain Wind, LLC v. Board of Environmental Protection, 2015 ME 156, is noteworthy for its analysis of "competing legislative purposes" in Maine wind energy law -- those designed to expedite the development of wind power in Maine, and those designed to protect scenic resources.

The Maine Supreme Judicial Court's December 3, 2015 opinion affirms an earlier decision by the state Board of Environmental Protection to deny a permit for the Bowers Wind Project.  In 2012 developer Champlain Wind had filed a consolidated application with the Maine Department of Environmental Protection, seeking state permits to construct the project.  As described in the opinion, that project would include 16 wind turbines with a combined generating capacity of 48 megawatts.  Geographically, the turbines fell "just within the boundary" of an area designated by the state Legislature for expedited wind energy development.  However, its turbines would be visible from nine great ponds classified as a "scenic resource of state or national significance" under state law.  Maine law gives enhanced protections to such scenic resources in wind project siting decisions affecting specified geographic areas.

After some process, the Department ultimately denied Champlain's application.  In so doing, the Department concluded that the project met all but one applicable standard.  The Department found that the project “would have an unreasonable adverse effect on the scenic character and existing uses related to the scenic character” of the nine affected great ponds.  This failure of the statutory scenic character standard led the Department to deny the requested consolidated permit.

Champlain appealed from the Department's denial to the Board of Environmental Protection.  The Board issued an order in June 2014 affirming the Department's denial.  Champlain appealed again, this time to the Maine Supreme Judicial Court.

The court's opinion on that case was published today.  Much of the court's opinion focuses on specific legal arguments in play -- for example, whether the Board could take an aggregated or "holistic approach" when considering a proposed project's impact on multiple scenic resources of state or national significance, and the level of judicial deference the court should afford the Board.

But for those interested in Maine wind energy development law, the most interesting parts of the opinion are likely those showing how the court interprets the Maine Wind Energy Act and related statutes.  As characterized in the introduction to the court's opinion,
the Board considered and balanced competing statutorily defined policies applicable to wind energy projects in Maine. The applicable statutes establish the dual policies of expediting wind energy development in defined geographic areas of Maine and at the same time providing enhanced protection for specific scenic resources. 
In its discussion, the court noted:
The generating facilities and wind turbines that make up the Project are proposed to be sited within the expedited permitting area; however, most of the nine great ponds affected by the Project—all of which are rated as outstanding or significant from a scenic perspective—are fully excluded from the expedited permitting area. Thus, as previously noted, the Board was confronted with a project that falls directly between competing legislative priorities.
The court recited the Board's consideration as having included:

  • the “existing character of the surrounding area” and “significance of the potentially affected scenic resource,” see 35-A M.R.S. § 3452(3)(A), (B);
  • the Legislature’s intent in balancing the goal of encouraging and expediting wind power development with the goal of protecting Maine’s scenic resources by limiting the geographic scope of the expedited permitting area; 
  • the exclusion of most of the nine affected great ponds from the expedited permitting area; and 
  • the unique interconnectedness of the affected great ponds, which would result in users being repeatedly confronted with views of the turbines from multiple scenic resources of state or national significance when traveling from one lake to another.

The court described these as "unique circumstances" and a "context of competing legislative priorities and unusually interconnected scenic resources."  In the court's view, presented with these circumstances and this context, it wasn't unreasonable, unjust, or unlawful for the Board to decline to issue the permit.  Because the court could not conclude that the Board acted unlawfully or arbitrarily or that the statutes compel a different result, the court deferred to the Board’s interpretation of the Maine Wind Energy Act and the statutes governing expedited permitting for grid-scale wind energy projects.

This opinion likely is most direct in its effect on those interested in the Bowers Wind Project, the parties and other stakeholders.  The Champlain Wind, LLC v. Board of Environmental Protection opinion may also catalyze renewed discussion about balancing what the court labeled "competing legislative purposes" in Maine wind energy project siting law -- on the one hand, to expedite the development of wind power in Maine; on the other, to protect scenic resources. 

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