ME law firm Preti Flaherty issues press release on SJC Bowers decision

Maine court interprets wind energy law

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.

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Comment by Eric A. Tuttle on December 5, 2015 at 3:59pm

One would think that the Scenic protection statutes, if having been in place prior to the Expedited, or even a standard Maine Wind Energy Act, would hold precedence with greater standing unless specifically written to exclude such protections at the time of the creation of either of the latter.

I am not sure which came into existence first however, not having done my homework.

[-- Info, thoughts? --]


Maine as Third World Country:

CMP Transmission Rate Skyrockets 19.6% Due to Wind Power


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Maine Center For Public Interest Reporting – Three Part Series: A CRITICAL LOOK AT MAINE’S WIND ACT


(excerpts) From Part 1 – On Maine’s Wind Law “Once the committee passed the wind energy bill on to the full House and Senate, lawmakers there didn’t even debate it. They passed it unanimously and with no discussion. House Majority Leader Hannah Pingree, a Democrat from North Haven, says legislators probably didn’t know how many turbines would be constructed in Maine if the law’s goals were met." . – Maine Center for Public Interest Reporting, August 2010 Part 2 – On Wind and Oil Yet using wind energy doesn’t lower dependence on imported foreign oil. That’s because the majority of imported oil in Maine is used for heating and transportation. And switching our dependence from foreign oil to Maine-produced electricity isn’t likely to happen very soon, says Bartlett. “Right now, people can’t switch to electric cars and heating – if they did, we’d be in trouble.” So was one of the fundamental premises of the task force false, or at least misleading?" Part 3 – On Wind-Required New Transmission Lines Finally, the building of enormous, high-voltage transmission lines that the regional electricity system operator says are required to move substantial amounts of wind power to markets south of Maine was never even discussed by the task force – an omission that Mills said will come to haunt the state.“If you try to put 2,500 or 3,000 megawatts in northern or eastern Maine – oh, my god, try to build the transmission!” said Mills. “It’s not just the towers, it’s the lines – that’s when I begin to think that the goal is a little farfetched.”

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Hannah Pingree on the Maine expedited wind law

Hannah Pingree - Director of Maine's Office of Innovation and the Future

"Once the committee passed the wind energy bill on to the full House and Senate, lawmakers there didn’t even debate it. They passed it unanimously and with no discussion. House Majority Leader Hannah Pingree, a Democrat from North Haven, says legislators probably didn’t know how many turbines would be constructed in Maine."

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