Is There a Future for Community Wind In Massachusetts?

by Foley Hoag LLP - Energy and Cleantech

442255_41859791Last week, Massachusetts Energy and Environmental Affairs Secretary Richard Sullivan announced an “inter-agency initiative . . . to provide support and guidance to municipalities, developers and stakeholders for land-based wind projects.”

Readers who have followed the issue of local opposition to wind turbines in Massachusetts know that over the last few years small wind-generation projects have come under increasing fire from nearby residents and advocacy groups complaining of health and other impacts from the operation of wind turbines.  Two turbines in Falmouth, whose future is still in doubt despite a town vote in May that rejected a plan to remove them, are the poster child for such controversies.  (The saga of the Falmouth turbines was documented as part of the Falmouth Wind Turbines Options Analysis process, which released a Final Report in January.)  Other wind projects, including projects in Fairhaven and Kingston, are facing similar challenges.  And opposition to land-based wind turbines is not isolated to specific projects.  A raft of bills pending in the state legislature would create commissions or other bodies to study alleged health effects of wind turbines, and many of these bills openly assume adverse effects that need to be mitigated (for example, see H. 2048, H. 2049, H. 2089, and S. 1041, which were the subject of a hearing before the Joint Committee on Public Health earlier this week).

Opposition to particular wind projects has frequently focused on sound, and sound concerns have raised challenging political and legal issues for those projects.  The Massachusetts Department of Environmental Protection (DEP) regulates sound under its general authority to regulate air pollutants.  The standards DEP uses for assessing compliance with its “noise policy” (itself a “guideline” adopted by DEP in 1990) are embodied in ambiguous guidance or policy documents, not in formal regulations, and how the noise policy should be applied to wind turbines is disputed on legal, technical, and policy grounds.  In response to sound complaints associated with wind projects, DEP has conducted sound monitoring at several wind projects using a controversial methodology that differs from the approach generally taken for power plants and other facilities.  Sound from other types of generating facilities is typically regulated through air permits that include standards based on comparing a background sound level, set at the sound level exceeded 90% of the time when a facility is not operating, to the sound level exceeded 90% of the time when the facility is operating, i.e., looking at the change in base sound level that occurs when a facility operates.  For wind projects, DEP’s approach to date has been to compare the background sound level exceeded 90% of the time when the turbine is not operating to peak sound measurements recorded during turbine operation.  The result is a standard that is more difficult to meet and more subject to factors unrelated to the source being measured.  Although DEP has not taken direct legal action against wind projects based on the results of its sound monitoring, DEP’s use of this methodology, and publication of results it describes as showing “exceedances” of its noise policy, have contributed to a sense of regulatory uncertainty for developers and  increased political pressure on local authorities including Boards of Health to take action based on sound complaints. 

Optimistically, the announced initiative might shift the debate over land-based wind in Massachusetts in a positive direction.  Previous efforts by Massachusetts agencies focused on providing information to stakeholders (readers may recall the January 2012 Wind Turbine Health Impact Study); this initiative might lead to meaningful regulatory changes.  Indeed, the initiative looks like a proactive effort by the Patrick administration to fill the void left by the inability of the General Court to pass comprehensive wind siting legislation (bills with that purpose have again been introduced in both the Senate and the House).  Particularly promising are a proposal to convene a technical advisory group to consider changes to DEP’s noise policy and a proposal to establish wind turbine siting best practices through the Energy Facilities Siting Board.  A suggestion in the announcement that the advisory group will consider the use of permits for wind projects to address the sound issue is especially interesting.  Such an approach might put wind projects on equal footing with other types of generating facilities and could draw on DEP’s extensive experience implementing sound standards in the context of conventional generation facilities.  Prospective siting guidance might help avoid or mitigate the intense controversies that have sprung up around operating wind turbines.  Optimism aside, those who have been dealing with this issue on the ground know the passion it evokes on all sides.  Finding an appropriate balance that addresses any legitimate concerns of wind project neighbors while providing enough certainty to project developers to facilitate new investments is not going to be easy.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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