William A. Ruskin: Are Environmentalists Who Oppose Wind Farms Environmentalists?

William A. Ruskin: Are Environmentalists Who Oppose Wind Farms Environmentalists?

By William A. Ruskin

Wind power can help address the nation's compelling demand for electric power without increasing greenhouse gas emissions or enlarging our carbon footprint. Environmental activists, who are critical of the use of fossil fuels due to their perceived negative impact on the environment, are generally supportive of developing wind power as an alternative energy source. Wind is renewable, sustainable and non-polluting.

Why is it then that environmental groups sometimes oppose the development of wind power in the courtroom? From a global or even regional perspective, environmentalists should be rallying behind wind power, not opposing.

The short answer is that any commercial-scale, land-based development project within the United States is likely to involve a matrix of regulatory and environmental issues that arise during the siting process. Wind farm siting often involves addressing issues concerning aesthetics, noise and wildlife impacts. In many instances, environmental groups have joined local activists and Nimbies in opposing a wind power development.

A more responsible role for an environmental group, which should recognize the benefits of wind power, should be to mediate siting disputes rather than oppose development. From the environmentalist's perspective, the more available wind power to generate electricity the better.

Many of the so-called environmental groups that oppose wind power are actually not environmentalists at all, but single purpose organizations whose sole object is to oppose wind development. Most environmental groups have an agenda that balances the pros and cons of various types of energy. However, these single purpose groups do not advocate in favor of anything.

For example, Friends of Maine's Mountains claim to be dedicated toward working to "foster a civil and fact-based debate with the goal of exposing the true costs of mountain-based industrial wind development in Maine." This group seeks donations to further its work in "shaping a sound, scientific and economics-based energy policy for the State of Maine." However, a review of its website demonstrates that it offers neither constructive energy policies nor recommendations for keeping Maine on the energy grid. Rather, it is a NIMBY group that advocates the view that any public or governmental support for wind power is misplaced.

In Friends of Maine's Mountains v. Board of Environmental Protection, 61 A.3d 689 (Me. 2013) [enhanced version available to lexis.com subscribers], Friends of Maine's Mountains, along with other environmental groups, opposed the approval of a wind energy project near a lake and multiple homes. The Maine Department of Environmental Protection ("DEP") set the appropriate nighttime noise level and refused to treat Webb Lake, which is located near the project, as a "scenic resource of national resource."

The Board of Environmental Protection ("BEP") upheld DEP's approval of the wind energy project. However, in doing so, BEP agreed to a higher noise threshold than what it had previously agreed to for wind projects generally. Plaintiffs brought suit to block the plan, claiming that BEP abused its discretion and violated the Maine Constitution.

On appeal, the court agreed that BEP had abused its discretion by approving the higher noise threshold. On the basis of this determination, the case was remanded for further consideration of the appropriate nighttime decibel level. However, the decision represents a considerable setback for Friends of Maine's Mountains (and other neo-environmentalists) despite the remand on the noise level issue.

The Supreme Judicial Court rejected plaintiffs' constitutional arguments that: (1) the Maine Wind Energy Act denied plaintiffs equal protection by denying protection for lakes listed among "Maine's Finest Lakes"; (2) the Wind Energy Act violated the separation of powers clause of the Maine Constitution; and (3) DEP and BEP denied plaintiffs' due process rights because of demonstrated bias. The court also rejected plaintiffs' argument that Webb Lake, despite its natural beauty, was deserving of protective "scenic resource" status. The Court determined that legislative action, not administrative orders, determines what lakes in Maine are protected as "scenic resources."

In addition, the court flatly rejected plaintiffs' argument that the Wind Energy Act's criteria for assessing visual impact are overly vague and therefore violative of the Separation of Powers Clause. The criteria in dispute were the six factors that the Board considers when making its determination regarding a wind energy project's impact on scenic resources.

The court held that a statute is not constitutional merely due to difficult application. For example, in an earlier case, the court grappled with the difficulty of defining an "annoying" dog bark. As difficult as it is to judicially determine when and under what circumstances a bark becomes an annoyance, this criterion was upheld as constitutional.

Maine's Legislature enacted the Wind Energy Act as a means to promote wind as a renewable energy source and streamline the permitting process for wind energy. Despite the opposition of the NIMBY groups like Friends of Maine's Mountains, the Supreme Judicial Court had previously held that the "state interest in facilitating the rapid development alternative, renewable energy resources" is a legitimate interest that rationally relates to provisions in the Wind Energy Act.

There is a constructive role for environmental activists to play in the wind power siting discussions, but single-minded opposition to the expanded use of wind power as an energy source is misplaced. These so-called "environmentalists" would better serve their stakeholders by engaging in constructive discussion rather than running to the courthouse.

For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.

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