Maine court interprets wind energy law

by PretiFlaherty
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Maine's highest court has issued an opinion interpreting Maine's laws governing wind energy project development.  The opinion is noteworthy for its analysis of two areas of Maine wind energy law -- those designed to expedite the development of wind power in Maine, and those designed to protect scenic resources -- which the Court has called "competing legislative purposes."

The Maine Supreme Judicial Court's December 3, 2015 decision in Champlain Wind, LLC v. Board of Environmental Protection, 2015 ME 156, affirms an earlier decision by the state Board of Environmental Protection to deny a permit for the Bowers Wind Project proposed by developer Champlain Wind.  In 2012 Champlain had filed a consolidated application with the Maine Department of Environmental Protection, seeking 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.  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.

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 relating to views and scenic impacts.  The Department based its permit denial on its finding 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.

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 the legal arguments in play -- for example, whether the Board unlawfully aggregated the scenic impact of the project on the nine affected great ponds in reaching its conclusion that the Project would have an unreasonable adverse scenic effect, whether the Board could take a "holistic approach" when considering the impact a proposed project may have 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." 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.

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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