Better Plan, Wisconsin

February 11, 2010

PORTLAND - Activists who are challenging the noise standards used to approve large wind power projects in Maine argued their case Wednesday before the Maine Supreme Judicial Court and heard sympathetic remarks from justices who questioned whether the current rules are adequate to protect nearby residents.

At issue is a new state law aimed at speeding up wind energy development. Opponents contend that the Department of Environmental Protection relied on flawed studies and ignored evidence about the potential effects of noise generated by large wind turbines when it approved the proposed Rollins Wind Project in eastern Maine.

The case is about more than the Rollins project. Opponents claim Maine's noise regulations are geared to loudness and not the subtle, low-frequency sounds and vibrations of wind turbines. They want the DEP to revisit its wind power noise regulations to reflect a changing scientific understanding of the sounds.

Comments by some of the justices seemed to support that view. But the Rollins project is being challenged on specific legal points tied to approval of the DEP permit, so the comments offer little insight into how the court may rule. A decision is likely within months.

"I think the sympathy was with us," said Lynne Williams, the lawyer representing the Friends of Lincoln Lakes, the group of property owners in southeastern Penobscot County that filed the appeal. "If (the justices) could find a way to do it, they might rule in our favor."

But Margaret Bensinger, the assistant attorney general representing the DEP, said the justices appeared to recognize there is reliable evidence in the case. The court typically doesn't second-guess a state agency about technical issues under its jurisdiction, she said.

If the appeal is rejected and attempts to change the regulations in this legislative session fail, opponents plan to collect enough signatures to petition the DEP to open a public process to consider new rules, Williams said.

The 60-megawatt Rollins wind farm would consist of 40 turbines along ridge lines in Lincoln, Winn, Lee, Burlington and Mattawamkeag. It would be built by Evergreen Wind Power III LLC, a subsidiary of First Wind. The company also has projects in western Washington County and Mars Hill and is planning another in Aroostook County.

Rollins was approved under a new law meant to expedite permits in areas of the state found to be compatible with wind power development while protecting the environment and nearby residents. The Rollins appeal is the first challenge to the law.

During the hearing, Chief Justice Leigh Saufley and Justice Donald Alexander raised questions about changing science. They wanted to know why the DEP isn't using computer models that could better detect the effect of wind turbines on people.

Bensinger said that the model used to approve Rollins is well accepted, and that the DEP can order modifications or even shut down projects if standards aren't met after the turbines start spinning.

Alexander expressed doubt that would happen. "Once the cows are out of the barn, this thing is going to stay operating, right?" he asked.

The justices had similar questions for Juliet Browne, the lawyer for First Wind.

Saufley asked how the project can be changed to address concerns, if it's out of compliance.

A turbine could be shut down, Browne said, as an example. Alexander said he was skeptical that First Wind would do that.

Justice Jon Levy wanted to know why wind power is on a fast track in Maine.

To encourage clean energy, Browne replied.

The judge asked whether wind power is entitled to that special treatment.

The Legislature says it is, Browne told him.

During rebuttal testimony, Saufley asked Williams if attempts are under way to change Maine's noise standards. Williams said they are, and mentioned a proposal in the Legislature and the possible petition drive.

After the hearing, residents who drove from Lincoln and their supporters said they were encouraged by the hearing.

"The justices were willing to look beyond the current situation," said Gordon Johnson, who owns property in Lincoln.

A similar view was expressed by Brad Blake of Cape Elizabeth, who has a camp near Lincoln and is a spokesman for the Citizens' Task Force on Wind Power, a group that's fighting large-scale wind projects.

"To be able to bring such a heinous law before the Supreme Court is a privilege for us as an activist group," he said.