S.30 – an act relating to siting of electric generation plants

This wording is as of 2-28-2013.

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NOTICE CALENDAR
Second Reading
Favorable with Recommendation of Amendment
S. 30.
An act relating to siting of electric generation plants.
Reported favorably with recommendation of amendment by Senator
Snelling for the Committee on Natural Resources and Energy.
The Committee recommends that the bill be amended by striking out all
after the enacting clause and inserting in lieu thereof the following:
* * * Findings * * *
Sec. 1. FINDINGS
The General Assembly finds that:
(1) Climate change from the emission of greenhouse gases such as
carbon dioxide (CO
2
) is one of the most serious issues facing Vermont today.
In this State, the change in climate already has resulted in significant damage
from increased heavy rain events and flooding and in fundamental alterations
to average annual temperatures and the length and characteristics of the
seasons. As climate change accelerates, the hazards to human health and
safety and the environment in Vermont will rise, including an increased
frequency of violent storm events, heat waves, and one- to two-month
droughts; threats to the productivity of cold-weather crops and dairy cows and
to cold-water fish and wildlife species; reduced seasons for skiing,
snowmobiling, and sugaring; and increasing risks to infrastructure such as
roads and bridges near streams and rivers.
(2) Vermont currently encourages the in-state siting of renewable
electric generation projects in order to contribute to reductions in global
climate change caused by greenhouse gas emissions. Yet significant
controversy exists over whether in-state development of renewable energy
actually reduces Vermont’s greenhouse gas emissions, since these projects
typically sell renewable energy credits to utilities in other states, and those
credits are netted against the greenhouse gas emissions of those states.
(3) Vermont’s electric energy consumption does not contribute
significantly to the State’s carbon footprint. In 2010, CO
2
and equivalent
emissions from Vermont energy consumption totaled approximately eight
million metric tons (MMTCO
2
). Of this total, transportation fuel use
accounted for approximately 3.5, nonelectric fuel use by homes and businesses
for approximately 2.5 and, in contrast, electric energy use for approximately
0.04 MMTCO
2
.
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(4) The in-state siting of renewable electric generation projects carries
the potential for significant adverse impacts. For example, in Vermont,
developers site industrial wind generation projects and wind meteorological
stations on ridgelines, which often contain sensitive habitat and important
natural areas. Vermont’s ridgelines also define and enhance the State’s natural
and scenic beauty. Vermont has invested substantial time and effort to develop
regulatory policy and programs to protect its ridgelines.
(5) Ridgeline wind generation plants have potential impacts on natural
resources, scenic beauty, and quality of life, including effects on endangered
and threatened species, wildlife habitat, and aesthetics and impacts from
blasting and turbine noise. Residents near installed wind generation plants
have raised concerns about health impacts, including sleep loss. Significant
controversy has arisen over whether the Public Service Board review process
adequately protects the public and the environment from the negative impacts
caused by these and other electric generation projects.
(6) Vermont has a long history of supporting community-based land use
planning. Under 24 V.S.A. chapter 117, Vermont’s 11 regional planning
commissions and its municipal planning commissions are enabled and
encouraged to adopt plans to guide development, including energy and utility
facilities. These plans are adopted through a public hearing and comment
process after substantial effort by the regions and the municipalities, often with
extensive involvement of citizens in the affected communities. Yet under
current law, the Public Service Board when reviewing an electric generation
project may set aside the results of this planning process for any reason the
Board considers to affect the general good of the State, even if the project is
not needed for reliability of the electric system.
(7) No statewide analysis and planning is performed to address the
environmental, land use, and health impacts of siting wind generation projects
in Vermont. Instead, the Public Service Board examines the impacts on a
case-by-case basis only.
(8) The current case-by-case system of regulating electric generation
projects must be revised to ensure the best possible siting of these projects. To
achieve this goal, the siting of electric generation projects must be directed by
community-based land use planning. Each electric generation project must
comply with the same environmental and land use criteria as other
development projects unless the generation project is for the purpose of system
reliability. A statewide assessment must be made and a process must be
developed that integrates and strengthens the role of community-based land
use planning and supports effective review and optimal siting of all electric
generation projects. This assessment also must evaluate whether encouraging
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in-state siting of renewable electric generation is the most appropriate means at
Vermont’s disposal to reduce its carbon footprint.
* * * Assessment; Report * * *
Sec. 2. ELECTRIC GENERATION SITING; ASSESSMENT; REPORT
(a) Charge. On or before November 15, 2013, the Department of Public
Service, in consultation with and assisted by the Agencies of Commerce and
Community Development and of Natural Resources, the Natural Resources
Board, and the state’s regional planning commissions, shall conduct and
complete the assessment and submit the report to the General Assembly
required by this section.
(b) Definitions. In this section:
(1) “ACCD” means the Agency of Commerce and Community
Development.
(2) “ANR” means the Agency of Natural Resources.
(3) “Board” means the Natural Resources Board.
(4) “Department” means the Department of Public Service.
(5) “Electric generation plant” means a plant that produces electricity
and has a plant capacity that exceeds 500 kilowatts.
(6) “Plant” and “plant capacity” shall have the same meaning as in
30 V.S.A. § 8002, except that they shall not be limited to renewable energy.
(7) “Regional planning commission” shall have the meaning as in
24 V.S.A. § 4303.
(8) “Wind generation plant” means an electric generation plant that
captures the energy of the wind and converts it into electricity. The term
includes all associated facilities and infrastructure such as wind turbines,
towers, guy wires, power lines, roads, and substations.
(9) “Wind meteorological station” means any tower, and associated guy
wires and attached instrumentation, constructed to collect and record wind
speed, wind direction, and atmospheric conditions.
(c) Governor’s Siting Policy Commission. In performing its tasks under
this section, the Department shall use the information and data collected by the
Governor’s Energy Siting Policy Commission (the Siting Policy Commission)
created by Executive Order No. 10-12 dated October 2, 2012 (the Executive
Order) and shall consider the recommendations of that Commission.
(d) Assessment. The Department, assisted by ACCD, ANR, the Board, and
the regional planning commissions, shall assess each of the following:
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(1) the appropriateness and economic efficiency of investing or
encouraging investment in renewable electric generation plants to reduce
Vermont’s greenhouse gas emissions in comparison to other measures to
reduce those emissions such as transportation fuel efficiency and thermal
energy efficiency;
(2) the current policy and practice of selling renewable energy credits
from renewable electric generation plants in Vermont to utilities in other
jurisdictions and the effect of this policy and practice on reducing Vermont’s
greenhouse gas emissions;
(3) methods to integrate state energy planning and local and regional
land use planning as they apply to electric generation plants;
(4) methods to strengthen the role of local and regional plans in the
siting review process for electric generation plants and to assure that the siting
review process reflects the outcome of the local and regional planning
processes;
(5) methods to fund intervenors in the siting review process for electric
generation projects; and
(6) with respect to wind generation plants and wind meteorological
stations:
(A) health impacts of plants and stations located in and outside
Vermont;
(B) sound and infrasound emitted from plants and stations located in
and outside Vermont as they affect public health and quality of life;
(C) setback requirements on such plants and stations adopted by
other jurisdictions in and outside the United States;
(D) the impacts on the environment, natural resources, and quality of
life of the plants and stations in Vermont in existence or under construction as
of the effective date of this section; and
(E) the economic and environmental costs and benefits of such plants
and stations, including the value of any ecosystem services affected by them.
(e) Report; proposed legislation. On or before November 15, 2013, the
Department, assisted by ACCD, ANR, the Board, and the regional planning
commissions, shall submit a report to the House and Senate Committees on
Natural Resources and Energy and the Electric Generation Oversight
Committee created under subsection (g) of this section that contains each of
the following:
(1) The results of each assessment to be conducted under subsection (d)
of this section.
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(2) Recommendations and proposed legislation to:
(A) establish a comprehensive planning process for the siting of
electric generation plants that integrates state energy and local and regional
land use planning;
(B) ensure that the outcome of this integrated planning process
directs the siting review process for electric generation plants and that local
and regional land use plans have a determinative role in this siting review
process;
(C) establish a method to fund intervenors participating in the siting
review process for electric generation plants;
(D) maximize the reductions in Vermont’s greenhouse gas emissions
supported by revenues raised from Vermont taxpayers and ratepayers;
(E) establish standards applicable to all wind generation plants and
wind meteorological stations to address their impacts on the public health,
environment, land use, and quality of life, including standards to protect
natural areas and wildlife habitat and to establish noise limits and setback
requirements applicable to such plants and stations; and
(F) establish a procedure to measure a property owner’s loss of value,
if any, due to proximity to a wind generation plant and to propose a method to
compensate the property owner for the loss in value, including a determination
of who shall pay for such loss.
(f) Public notice and participation.
(1) The Department shall give widespread public notice of the
assessment and report required by this section and shall maintain on its website
a prominent page concerning this process that provides notice of all public
meetings held and posts relevant information and documents.
(2) In performing the assessment and developing the report required by
this section, the Department shall provide an opportunity for local legislative
bodies, local planning commissions, affected businesses and organizations, and
members of the public to submit relevant factual information, analysis, and
comment. This opportunity shall include meetings conducted by the DPS at
locations that are geographically distributed around the State to receive such
information, analysis, and comment.
(g) Oversight committee. There is created the Electric Generation
Oversight Committee (the Committee). The purpose of the Committee shall be
to perform legislative oversight of the conduct of the assessment and report
required by this section and to discuss potential legislation on planning for and
siting of electric generation plants.
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(1) Membership. The Committee shall be composed of six members
who shall be appointed within 30 days of this section’s effective date. Three of
the members shall be members of the Senate Committee on Natural Resources
and Energy appointed by the Committee on Committees of the Senate. Three
of the members shall be members of the House Committee on Natural
Resources and Energy appointed by the Speaker of the House.
(2) Meetings. During adjournment of the General Assembly, the
Committee shall be authorized to conduct up to three meetings. at which
meetings the Committee may:
(A) direct the Department, ACCD, ANR, the Board, and one or more
regional planning commissions to appear and provide progress reports on the
assessment and report required by this section and discuss proposals of draft
legislation on planning for and siting of electric generation plants; and
(B) direct members of the Siting Policy Commission to appear and
provide information and testimony related to the Commission’s report and
recommendations issued pursuant to the Executive Order and to the siting of
electric generation plants in Vermont. This authority shall continue for the
duration of the Committee’s term whether or not the Siting Policy Commission
ceases to exist prior to the end of the Committee’s term.
(3) Reimbursement. For attendance at authorized meetings during
adjournment of the General Assembly, members of the Committee shall be
entitled to compensation and reimbursement for expenses as provided in 2
V.S.A. § 406.
(4) For the purpose of its tasks under this subsection, the Committee
shall have the administrative and legal assistance of the Office of Legislative
Council.
(5) Term of committee. The Committee shall cease to exist on February
1, 2014.
Sec. 3. APPROPRIATION
For fiscal year 2014, the sum of $75,000.00 is appropriated to the
Department of Public Service from the General Fund for the purpose of Sec. 2
of this act (electric generation siting; assessment; report).
* * * Regional Planning for Electric Generation Plants * * *
Sec. 4. 24 V.S.A. § 4348a is amended to read:
§ 4348a. ELEMENTS OF A REGIONAL PLAN
(a) A regional plan shall be consistent with the goals established in section
4302 of this title and shall include but need not be limited to the following:
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* * *
(3) An energy element, which:
(A) may include an analysis of energy resources, needs, scarcities,
costs, and problems within the region, a statement of policy on the
conservation of energy and the development of renewable energy resources,
and a statement of policy on patterns and densities of land use and control
devices likely to result in conservation of energy; and
(B) shall include the electric energy siting plan under section 4348c
of this title;
* * *
Sec. 5. 24 V.S.A. § 4348c is added to read:
§ 4348c. ELECTRIC ENERGY SITING PLAN
(a) In this section:
(1) “Electric generation plant” means a plant that produces electricity
and has a plant capacity that exceeds 500 kilowatts.
(2) “Plant” and “plant capacity” shall have the same meaning as in
30 V.S.A. § 8002, except that they shall not be limited to renewable energy.
(b) Each regional planning commission shall adopt a plan concerning the
siting of electric generation plants within the region. This plan shall be
adopted as part of or an amendment to the regional plan.
(c) The plan shall state the region’s specific policies on the siting of electric
generation plants and identify the appropriate locations within the region, if
any, for the siting of electric generation plants.
(d) In developing the siting plan, the regional planning commission shall
apply the resource maps developed by the Secretary of Natural Resources
under 10 V.S.A. § 127, protect the resources under 10 V.S.A. § 6086(a), and
consider the energy policy set forth in 30 V.S.A. §§ 202a and 8001 and the
state energy plans adopted under 30 V.S.A. §§ 202 and 202b.
(e) Notwithstanding section 4350 of this title, the plan for a municipality
shall not be considered incompatible with the regional plan for the reason that
the municipal plan prohibits the siting of an electric generation plant that the
regional plan would allow within the municipality.
Sec. 6. IMPLEMENTATION
On or before December 15, 2014, each regional planning commission shall
adopt a renewable electric energy siting plan under Sec. 5 of this act, 24 V.S.A.
§ 4348c.
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* * * Municipal Officers; Ethics Disclosure * * *
Sec. 7. 24 V.S.A. § 873 is added to read:
§ 873. DISCLOSURE; FINANCIAL INTEREST; WIND GENERATION
PLANTS
A member of a municipality’s legislative body or other municipal officer
shall not participate in any meeting or proceeding or take any official action
concerning a wind generation plant proposed to be located within the
municipality the member or officer may have in the construction or operation
of the plant, including the retention of the member or officer by the plant
developer an agreement under which the plant developer will compensate the
member or officer for potential impacts to land of the member or officer.
(1) In this section, a financial interest of a member or officer shall
include a financial interest in the construction or operation of the plant of any
natural person to which the member or officer is related within the fourth
degree of consanguinity or affinity or of any corporation of which an officer,
director, trustee, or agent is related to the member or officer within such
degree.
(2) This section shall not require disclosure of a financial interest shared
generally by the residents of the municipality such as the municipality’s receipt
of property taxes or other payments from the plant.
Sec. 8. 24 V.S.A. § 4461 is amended to read:
§ 4461. DEVELOPMENT REVIEW PROCEDURES
(a) Meetings; rules of procedure and ethics. An appropriate municipal
panel shall elect its own officers and adopt rules of procedure, subject to this
section and other applicable state statutes, and shall adopt rules of ethics with
respect to conflicts of interest.
(1) Meetings of any appropriate municipal panel shall be held at the call
of the chairperson and at such times as the panel may determine. The officers
of the panel may administer oaths and compel the attendance of witnesses and
the production of material germane to any issue under review. All meetings of
the panel, except for deliberative and executive sessions, shall be open to the
public. The panel shall keep minutes of its proceedings, showing the vote of
each member upon each question, or, if absent or failing to vote, indicating
this, and shall keep records of its examinations and other official actions, all of
which shall be filed immediately in the office of the clerk of the municipality
as a public record. For the conduct of any hearing and the taking of any action,
a quorum shall be not less than a majority of the members of the panel, and any
action of the panel shall be taken by the concurrence of a majority of the panel.
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(2) The provisions of section 873 of this title (disclosure; financial
interest; wind generation plant) shall apply to each member of an appropriate
municipal panel.
* * *
* * * Electric Generation Siting Jurisdiction; Public Service Board * * *
Sec. 9. 30 V.S.A. § 248 is amended to read:
§ 248. NEW GAS AND ELECTRIC PURCHASES, INVESTMENTS, AND
FACILITIES; CERTIFICATE OF PUBLIC GOOD
(a)(1) No company, as defined in section 201 of this title, may:
(A) In any way purchase electric capacity or energy from outside
the state State:
(i) for a period exceeding five years, that represents more than
three percent of its historic peak demand, unless the purchase is from a plant as
defined in subdivision 8002(14) of this title that produces electricity from
renewable energy as defined under subdivision 8002(17); or
(ii) for a period exceeding ten years, that represents more than ten
percent of its historic peak demand, if the purchase is from a plant as defined
in subdivision 8002(14) of this title that produces electricity from renewable
energy as defined under subdivision 8002(17); or
(B) invest in an electric generation or transmission facility located
outside this state State unless the public service board Public Service Board
first finds that the same will promote the general good of the state State and
issues a certificate to that effect.
(2) Except for the replacement of existing facilities with equivalent
facilities in the usual course of business, and except for electric generation
facilities that are operated solely for on-site electricity consumption by the
owner of those facilities:
(A) no company, as defined in section 201 of this title, and no person,
as defined in 10 V.S.A. § 6001(14), may begin site preparation for or
construction of an electric generation facility or electric transmission facility
within the state State which is designed for immediate or eventual operation at
any voltage; and
(B) no such company may exercise the right of eminent domain in
connection with site preparation for or construction of any such transmission or
generation facility, unless the public service board Public Service Board first
finds that the same will promote the general good of the state State and issues a
certificate to that effect.
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* * *
(b) Before the public service board Public Service Board issues a certificate
of public good as required under subsection (a) of this section, it shall find that
the purchase, investment, or construction:
(1)(A) with respect to an in-state electric generation facility exceeding
500 kilowatts, will be in conformance with the duly adopted plans under 24
V.S.A. chapter 117 for the municipality and region in which the facility is
located, and due consideration has been given to the land conservation
measures contained in the plan of any other affected municipality.
Notwithstanding subsection (a) of this section, the Board shall not issue a
certificate under this section for such an in-state facility without finding that
this subdivision (1)(A) is met. However, this subdivision (1)(A) shall not
apply to an electric generation facility the principal effect of which, if
approved, would be to remediate a constraint in the electric transmission or
distribution system;
(B) with respect to an any other in-state facility subject to this
section, will not unduly interfere with the orderly development of the region
with due consideration having been given to the recommendations of the
municipal and regional planning commissions, the recommendations of the
municipal legislative bodies, and the land conservation measures contained in
the plan of any affected municipality. However, with respect to a natural gas
transmission line subject to board review, the line shall be in conformance with
any applicable provisions concerning such lines contained in the duly adopted
regional plan; and, in addition, upon application of any party, the board Board
shall condition any certificate of public good for a natural gas transmission line
issued under this section so as to prohibit service connections that would not be
in conformance with the adopted municipal plan in any municipality in which
the line is located;
* * *
(5) with respect to an in-state facility, will not have an undue adverse
effect on esthetics, historic sites, air and water purity, the natural environment,
the use of natural resources, and the public health and safety, with and:
(A) with respect to an in-state electric generation facility exceeding
500 kilowatts, will comply with the criteria of 10 V.S.A. § 6086(a)(1)–(9)(L).
Notwithstanding subsection (a) of this section, the Board shall not issue a
certificate under this section for such an in-state facility without finding that
this subdivision (5)(A) is met. However, this subdivision (5)(A) shall not
apply to an electric generation facility the principal effect of which, if
approved, would be to remediate a constraint in the electric transmission or
distribution system;
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(B) with respect to any other in-state facility subject to this section,
due consideration having has been given to the criteria specified in 10 V.S.A.
§§ 1424a(d) and 6086(a)(1) through (8) and (9)(K) and greenhouse gas
impacts.
* * *
(q) When reviewing a facility under this section pursuant to the criteria of
10 V.S.A. § 6086(a), the Public Service Board shall consider the relevant
precedents of the former Environmental Board and of the Environmental
Division of the Superior Court and shall apply the relevant precedents of the
Vermont Supreme Court.
Sec. 10. RETROACTIVE APPLICATION
Notwithstanding 1 V.S.A. §§ 213 and 214, Sec. 9 (new gas and electric
purchases, investments, and facilities; certificate of public good) of this act
shall apply to applications that are filed on and after March 1, 2013 and are
pending as of this section’s effective date.
* * * State Lands * * *
Sec. 11. 10 V.S.A. chapter 88 is added to read:
CHAPTER 88. PROHIBITION; COMMERCIAL CONSTRUCTION;
CERTAIN PUBLIC LANDS
§ 2801. POLICY
Vermont’s state parks, state forests, natural areas, wilderness areas, wildlife
management areas, and wildlife refuges are intended to remain in a natural or
wild state forever and shall be protected and managed accordingly.
§ 2802. PROHIBITION
(a) Construction for any commercial purpose, including the generation of
electric power, shall not be permitted within any state park or forest,
wilderness area designated by law, or natural area designated under section
2607 of this title.
(b) This section shall not prohibit:
(1) the construction of a concession or other structure for the use of
visitors to state parks or forests;
(2) a modification or improvement to a dam in existence as of the
effective date of this section, if the modification or improvement is:
(A) to ensure public safety; or
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(B) to allow the dam’s use for the generation of electricity, and the
construction of any power lines and facilities necessary for such use;
(3) the construction of telecommunications facilities, as defined in
30 V.S.A. § 248a(b) (certificate of public good; communications facilities), in
accordance with all other applicable state law;
(4) a temporary structure or road for forestry purposes as may be
permitted on a state land;
(5) tapping of maple trees and associated activities on state forestland
authorized under a license pursuant to section 2606b of this title; or
(6) construction on state land that is permitted under a lease or license
that was in existence on this act’s effective date and, in the case of a ski area,
the renewal of such a lease or license or its modification to allow expansion of
the ski area.
Sec. 12. REPEAL
10 V.S.A. § 2606(c) (state forests; parks; leases for mining or quarrying) is
repealed.

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Reporter seeks damages for arrest on Lowell Mountain

by Paul Lefebvre

copyright the Chronicle 1-9-2013

The legal fight between Green Mountain Power (GMP)  and Chronicle publisher and reporter Chris Braithwaite has shifted from criminal to civil court.

Defense attorney Phil White filed a civil complaint late last month alleging that GMP had violated his client’s civil rights when Mr. Braithwaite was arrested on December 5, 2011, for covering a wind protest on Lowell Mountain.

Mr. White charges that GMP and its agent on the site, David Coriell, “knew or should have known that Braithwaite had permission to be on the property and that, at the very least, misinformation provided by Coriell and GMP to law enforcement had caused Braithwaite to be wrongly taken into custody, arrested, and subsequently charged with and prosecuted for unlawful trespass.”

The civil complaint comes close on the heels of a ruling handed down by Judge Howard VanBenthuysen that dismissed a criminal charge of unlawful trespass brought against Mr. Braithwaite and forbids the state to bring the charges back at a later date.

In dismissing the case with prejudice, Judge VanBenthuysen noted that he failed to see how the state could bring back the charge against the journalist in light of the e-mails among GMP officials giving the press permission to be at the site.

After noting the e-mails only came into view as the case was about to go to trial, the judge wrote:  “Consent is a key element of the offense, and GMP apparently consented to the presence of media at protests, and gave instructions that the media should not be arrested.”

In her brief to the court, Deputy State’s Attorney Sarah Baker argued against dismissing the charge with prejudice, saying the state could still make a case against Mr. Braithwaite by bringing Mr. Coriell, who has since left Vermont, back to testify.

The judge concluded, however, that was stretching the point, as it was unlikely that Mr. Coriell could give testimony that would rebut the evidence found in the e-mails.

“Under the circumstances this is the rare case in which a dismissal with prejudice is appropriate, given the late revelation of consent.”

The ruling was released on December 24 and the day after Christmas, December 26, Mr. White filed a civil complaint against GMP.  Along with the complaint, Mr. White also asked the court to revise a protective order to return to GMP documents that were sealed when the criminal case was still active.

Mr. White argued in his brief that he wanted to retain the documents on the grounds they constitute evidence in the civil suit he is pursuing against GMP.  If the court grants his request, the documents would be kept from public view until further court order.

The civil suit filed by Mr. White seeks damages on four counts:  false arrest; false and malicious prosecution; fraud, slander and false report; and fraudulent concealment.

The suit asks for compensatory damages in the amount of $22,530 (Mr. White’s fee for Mr. Braithwaite’s criminal defense) along with attorney’s fees and expenses in the civil case.  The suit further alleges that Mr. Braithwaite’s civil rights were violated, and seeks punitive damages, which are characteristically sought as a deterrent.

In his discussion of the events leading up to his client’s arrest, Mr. White says that GMP anticipated Mr. Braithwaite’s arrival at the protest and spelled out a course of action for its agent at Lowell Mountain.

GMP officials, according to the complaint, “gave Coriell explicit directions to inform law enforcement that Chris Braithwaite and any other members of the working press who showed up to cover this protest had GMP’s consent to be there to cover this event and that they were not to be arrested.”

As it turned out, Mr. Braithwaite was the only reporter present at the site, and was arrested when he refused a police order to leave.  Mr. White argues that after his client was arrested, GMP failed to step forward to explain their instructions to Mr. Coriell and reverse the arrest.

Their failure to do so, the attorney further argues, violated Mr. Braithwaite’s civil rights.  The attorney said that Mr. Braithwaite, as a journalist, had written “fierce editorials opposing GMP’s commercial wind project” on Lowell Mountain.

“At all times material to this complaint GMP and its agents, including Coriell and Orleans County law enforcement officers have jointly participated in the planning and execution of arrests of protesters,” charges the complaint.

“GMP and/or Coriell were acting under the color of law and engaging in ‘state action’ when they maliciously gave the government false and misleading information with the purpose of causing the government to engage in false arrest and wrongful prosecution.”

Green Mountain Power did not respond Tuesday to a request for comment.  Nor has the company filed a response in court to the complaint.  When the possibility of a civil law suit was raised last month, a company spokesman told a reporter that any legal claim against Mr. Coriell would be frivolous.

contact Paul Lefebvre at paul@bartonchronicle.com

For more free articles from the Chronicle like this one, see our Editor’s Picks pages. For all the Chronicle’s stories, pick up a print copy or subscribe, either for print or digital editions.

To read court documents connected to this case, please click on the links here:  No1-citation

No2-recordcheck

No3-information

No4-Sheriff’s affidavit

No5-Coriell’s affidavit

No6-Brooks affidavit

No7-Motion to Dismiss

No8-state’s response to No7

No9-Defense Memo in support of No7

No10-renewed motion to dismiss

No11-motion to dismiss with prejudice

No12-state’s opposition to No11

No13-judge’s ruling on No11

No14-civil complaint

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Publisher’s trespassing case dismissed

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The Lowell Mountain wind towers as seen from Irish Hill. Photo by Bethany M. Dunbar

by Paul Lefebvre

copyright the Chronicle 12-12-2012

NEWPORT — A utility wind developer company that tried to do the right thing by the press appears to have shot itself in the foot when it allowed the arrest of a reporter and then failed to step forward and rectify an action contrary to company policy.

The Orleans County state’s attorney’s office last week dismissed a criminal charge of unlawful trespass brought against Chris Braithwaite, a reporter for and publisher of the Chronicle in Barton.

Mr. Braithwaite, who had been spearheading his paper’s coverage of the wind project on Lowell Mountain and the controversy it triggered, went to the site on December 5, 2011, to cover a demonstration that protesters had scheduled for the morning.

Police intervened and arrested six protesters, who became known as the Lowell Six.  A jury found each of them guilty of unlawful trespass this summer.  Mr. Braithwaite also was arrested despite his claims he only had gone to the site to cover the demonstration as a reporter.

When news of his case’s dismissal was announced last week, Mr. Braithwaite, 68, of West Glover, released the following statement:

“On the day after my arraignment on a charge of unlawful trespass, I wrote that I believed my conduct on Lowell Mountain on December 5, 2011, satisfied the dictates of common sense and the ethics of journalism.  What remained was the daunting task of demonstrating that it was also within the law.  That task came to a successful conclusion today.”

Dismissal came as the case was preparing to go to trial and after defense attorney Phil White subpoenaed internal e-mails that passed back and forth among officials of Green Mountain Power Company (GMP.)

The documents show that GMP intended to give Mr. Braithwaite and other reporters access to its Lowell Mountain site, where protesters were demonstrating against the construction of a 21-turbine wind project.

“Does anyone know what happened,” asked Robert Dostis, a GMP official who works with communities and who was responding to colleagues about an editorial against the arrest.

To GMP’s site manager at Lowell Mountain, he went on express surprise that an arrest had occurred.

“Frankly, I don’t understand why Chris was arrested since you gave exact instructions that he not be,” he wrote in an e-mail dated December 10.

A day later, a second official struck a similar note.

“I think now we have to put an end to the notion we tried to stop the media, when we simply did not,” wrote a GMP consultant Stephen Terry in an internal e-mail sent six days after the arrest.

He then repeated a question asked earlier by the company’s public relations officer:  “Did the leadership instruction not to arrest CB just not get relayed fast enough Monday morning?”

While release of the e-mails helped to end the criminal charge, they may have opened a new chapter in the case.

Attorney White said Monday he had asked for an apology from GMP as well as compensation for expenses and legal fees that came to $22,330.

“Had Green Mountain Power disclosed this information to the State Attorney’s Office promptly, Chris never would have had to undergo a year facing criminal charges,” wrote Mr. White in an e-mail.

“Instead, GMP sat on its hands and did nothing, absolutely nothing.”

Mr. White said he hoped that GMP would “do the right thing” by apologizing and paying Mr. Braithwaite.

But that appeared unlikely Tuesday.

GMP Public Relations Officer Dorothy Schnure said that it was Mr. Braithwaite’s refusal to leave the site that caused him to be arrested.  And once an arrest occurred, it was out of GMP’s hands.

“It’s not our case, it’s the state’s,” she said, adding later:  “While we had hoped he wouldn’t be arrested, that’s what played out.”

She declined to comment Tuesday if the company had received Mr. White’s request of GMP to pay for his client’s legal fees and expenses.

In an e-mail later in the day Ms. Schnure stated:

“Frankly, the proposition that David Coriell acted inappropriately and that it gives grounds for a legal claim by Chris Braithwaite is frankly frivolous.”

On Monday Judge Howard VanBenthuysen, who presided over the case, released some of the documents, which had been sealed under an agreement between the defense and prosecution.

The judge noted they had been submitted in support of the defense motion to dismiss with prejudice and were now part of the public record.

He also said he would not rule on the motion to dismiss the case with prejudice until the state had a chance to respond.  If a case is dismissed without prejudice, the state can bring it again.  He set a deadline of December 26 for the prosecution to respond.

Deputy State’s Attorney Sarah Baker said in an interview Tuesday she would file a response opposing the motion because there is still evidence available that would enable the state to win the case.

She said her motion would also explain why the state dismissed the charge, adding that her office did not want to inconvenience a witness and former employee of GMP who has since moved from Vermont.  Ms. Baker also said there were documents in the file that had not been unsealed and that would help the state prove its case, in the event it was brought back.

The documents that came to light this week indicated that the state’s dismissal may have hinged on the failure of a GMP employee at the scene on the day of the arrest to correctly inform police officers of the company’s policy toward arresting Mr. Braithwaite and any other journalists covering the protest.

As GMP officials scrambled to learn what had happened, David Coriell, its representative at the site during the protest, tried to explain to his bosses in two e-mails why the arrest had occurred.

The first e-mail sent on the day of the arrest stated: “Braithwaite and another woman stopped at the edge of the construction site and started taking pictures.  Phil Brooks, the Orleans Co. Chief Deputy, asked Braithwaite and the woman to get back another 50 feet to the Nelson property.  The woman complied.  Braithwaite chose to stay.  Brooks approached Braithwaite and after a short conversation he asked him to leave or come back and stand with those willing to be arrested.  Braithwaite walked back and stood with those being arrested.”

In the second e-mail, dated December 11, Mr. Coriell told his bosses that the no-arrest instructions “didn’t get relayed to all the officers involved.

“That said, I know the Sheriff had no intention of arresting Chris.  Chris actually arrested himself by physically walking back to the middle of the crane path.”

He went on to say that Mr. Braithwaite called the officer an expletive.  The officer charged that the reporter had stepped “over a professional line.”

Ms. Schnure said Tuesday the scene that day at the site was confusing, with cell phones losing signal and people milling around.  She called the arrest Tuesday “a breakdown in communications.”

Concerned that another protest at the mountain was coming, GMP officials huddled and considered what they should do about access and the press, and what instructions to give the police.  An e-mail from Ms. Schnure to GMP managers on December 11 laid out a possible course of action.

“Dave confirm that sheriff will be there early if at all possible.  Ensure sheriff knows media has permission to be there.  Tell Sheriff we really don’t want any reporters arrested.”

Mr. Terry, the consultant, agreed, calling the proposed instructions “a good way to pre-empt another journalism arrest which was never our intent or purpose here.”

While it is still unclear how far the documents went in convincing the state to dismiss the charge, they did provide a picture of GMP managers working to ensure similar arrests of reporters would not occur at future demonstrations.

“We have to minimize the public and political fallout of decisions made on the mountain,” wrote Mr. Dostis in a December 10 e-mail.

“Arresting reporters will do more harm than good.”

Ms. Schnure said repeatedly Tuesday that it was Mr. Braithwaite’s actions that caused his arrest.  And that he was not owed an apology by GMP.

contact Paul Lefebvre at paul@bartonchronicle.com

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Lowell wind project nears completion amid noise complaints

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The Lowell Mountain wind towers as seen from Irish Hill. Photo by Bethany M. Dunbar

by Chris Braithwaite

copyright the Chronicle 11-28-2012

LOWELL — All 21 turbines of the Kingdom Community Wind project have generated power, a spokesman for Green Mountain Power said Tuesday.  And with the project making power, it has beaten the December 31 deadline to qualify for federal production tax credits that should total between $40-million and $48-million over the next ten years, said the spokesman, Dorothy Schnure.

She emphasized that “every penny” of the tax credits “goes to lower the cost of power for our customers.”

Ms. Schnure stopped short of saying the project is complete.  “We still have some fine tuning work to do on them,” she said of the turbines.

Meanwhile complaints about noise continue to be heard from the project’s neighbors.  And the distances the turbines’ sound can travel continues to surprise people.

Mary Davis, who lives about four miles east in Albany, across the valley of the Black River and a little east of Page Pond, said she heard them early Monday morning.

“I was taking the old dog out for a three o’clock stroll,” Ms. Davis said.  “She’s almost 15, and when she’s got to go, she’s got to go.”

Ms. Davis found the sound novel, but hard to describe.  “It was just something different,” she said.

“It must be awful” for the project’s close neighbors, Ms. Davis commented, “if you can hear it this far back.”

On the other side of Lowell Mountain, on the Farm Road, one such neighbor arrived home from his overseas job late last week.

“At approximately 3 on the morning of November 25 I along with four of my house guests were woken by thumping noise that lasted for over two hours coming from the wind turbines behind my home,” Kevin McGrath wrote in an e-mail to Susan Paruch, a consumer affairs specialist at the state Department of Public Service.

“The noise was similar to a heavy object rotating in a clothes dryer,” Mr. McGrath wrote.  “Later on that morning at about 10 the noise levels penetrated my home and sounded like a waterfall gushing directly behind my home.”

Mr. McGrath lives in one of about 50 structures that sit inside a “1.5 mile buffer” drawn around the project by RSG, Inc., the White River Junction firm that drafted the final sound monitoring protocol for Green Mountain Power.  His home is also one of about 19 structures within a smaller zone where, RSG estimates, turbine sound will reach between 40 and 45 decibels outside the home.

In granting the project a certificate of public good, the state Public Service Board set sound limits at 45 decibels outside neighboring homes, and 30 decibels in their bedrooms.

The extended family of Don and Shirley Nelson celebrated Thanksgiving in their farmhouse, which also sits well inside the 40-to-45-decibel zone.

Among the 19 people present, Mr. Nelson said Monday, two suffered migraine headaches, and some thought their ears were going to pop.  “Some of their stomachs didn’t feel right,” Mr. Nelson said, “and I don’t think it was Shirley’s cooking.”

“Shirley can hear it in the house,” he said of the turbine sound.  “Her ears are ringing all the time now.  They never did before.  If we go away two or three hours, it stops.”

Mr. Nelson, who was one of the migraine sufferers, said it’s impossible to know what causes such a headache.  He added that he expects complaints from his household to be discounted by Green Mountain Power and state officials, because the couple has fought to stop the project since it was proposed.

At Green Mountain Power, Ms. Schnure said the utility has received two more noise complaints since a particularly noisy weekend surprised many Albany residents in early November.  Both of the recent complaints came from hunters, she said.

“If people have concerns about undue noise they should talk to us,” Ms. Schnure said.

The Public Service Board imposed strict noise limits on the project, she said, “and we will meet those standards.”

contact Chris Braithwaite at chris@bartonchronicle.com

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Brighton selectmen poll voters and taxpayers on industrial wind

Wind towers on Lowell Mountain, as seen from Irish Hill Road. Photo by Bethany M. Dunbar

by Richard Creaser

copyright the Chronicle 11-21-2012

ISLAND POND — Within the next few days every registered voter and property taxpayer in the town of Brighton can expect to receive a ballot in the mail.  That ballot asks the recipient whether or not they favor, oppose or remain undecided on the issue of industrial wind projects on ridgelines within the town.  Though the results of the balloting are non-binding, the town’s selectmen agreed that they would support the majority decision expressed by respondents.

The ballots were mailed on Tuesday and must be postmarked no later than December 7 to be included in the voting.  The selectmen agreed to wait a few extra days for any wayward ballots but only those mailed on or before the due date will be eligible for consideration.

Ensuring the integrity of the balloting process was paramount, chairman of the selectmen Melinda Gervais said.  Each envelope provided with the ballot contains the return address of the recipient allowing town officers to check off the voter or taxpayer.

The ballot within will be kept folded before being secured in a locked ballot box stored in the vault in the basement of the municipal office, Ms. Gervais said.  Only Town Clerk Teresa Potwin has access to the key that opens the vault, she added.

“We’re doing everything we can to make sure no one can get in there and stuff the ballot box,” Ms. Gervais said.  “We want this to represent the wishes of this town.”

Earlier in the evening the selectmen were asked what measures the town would take to protect the people of the town from possible negative effects of industrial wind turbines.  Resident Kathleen Nelson expressed her concern that oversight of the developers is sorely lacking.  The Public Service Board, she said, appears to have no interest at all in evaluating the financial capability of developers.  If a project fails or produces negative effects, would the taxpayers of the town become responsible for making reparations, she asked.

“How are you going to stop these people from ruining everything I’ve worked so hard to build?” Ms. Nelson said.  “What are you going to do to protect me?”

It is difficult to say what steps the town can take considering the project has not even passed the met tower stage, Ms. Gervais said.  Protecting the public is a job best suited to the regulators both at the state and federal level, Selectman James Webb said.

“I guess that’s where the state and whatever regulations they have come into play,” Mr. Webb said.  “As long as they follow the rules, I don’t see what we can do.”

The state’s interest in protecting the public seems tenuous at best, resident Joe Arborio said.  The Public Service Board makes its decisions without ever needing to accept any responsibility for the outcomes of those decisions, he said.

“If it goes wrong they have no responsibility,” Mr. Arborio said.  “It’s what I imagine living in a dictatorship would be like — here it is, deal with it.”

Evaluating the financial stability of a developer falls outside of the town’s jurisdiction, Brighton Administrative Assistant Joel Cope said.  As long as the developer comes in with the money in hand there is no reason for the town to become involved, he said.  It would be different, however, if the developer sought the town’s support for a grant, Mr. Cope added.

“If the town became involved in the financing of a project we would certainly involve an attorney and closely review the risk,” Mr. Cope said.

Ms. Nelson also expressed concern about the potential for the town to become mired in litigation should the developer fail to live up to its promises.  Given the problems that have surfaced around other wind projects both in Vermont and around the nation, the potential for the town needing to litigate seems high, Pam Arborio said.

“I think this is going to end up in the judicial arena before it’s all over,” Ms. Arborio said.

While some people have come forward to express concerns about the negative effect wind turbines would have on the town, those fears represent only half of the issue, Selectman Mike Worth said.

“The other half will be asking what we’re going to do to promote renewable energy in this state,” Mr. Worth said.  “That’s why we’re doing this survey — so we can find out what the majority of people want.  I will do what the town supports.”

Ms. Gervais concluded the discussion with a pledge to give serious consideration to all sides of the issue.  What stance the selectmen will adopt going forward will be heavily influenced by the outcome of the balloting.

“We all have our own opinions about this but we’re willing to put that aside and represent the people of this town,” Ms. Gervais said.  “We’re trying to prepare and get our information ready for when the project finally comes down.”

 Bollard crashes

 In other business the selectmen gave thought as to how to prevent drivers from crashing into the concrete posts that delineate travel lanes at the Rail Depot building.  The large, immovable yellow posts have been struck no less than seven times in recent months.  The posts were originally placed there to prevent tall vehicular traffic from crashing into and tearing off the canopy roof adjacent to the Community National Bank’s drive through.

“We thought we were fixing one problem but ended up creating another,” Ms. Gervais lamented.

The trouble with the posts, or bollards as they are properly known, is that they can easily disappear in the blind spots of larger trucks and SUVs, Mr. Worth said.  Indeed, he also admitted that he has experienced near misses of his own with the bollards.

The selectmen authorized Mr. Cope to investigate the purchase of curbing to provide at least some warning to vehicles before they strike the posts.

contact Richard Creaser at nek_scribbler@hotmail.com

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On wind: let’s go against the national trend of polarization

Editors,

The citizens of the Northeast Kingdom of Vermont and Vermont as a whole are embroiled in a seriously divisive battle over the region’s ridgelines and the mountaintops, as big business attempts to line them with industrial wind turbines.  Neighbors and former friends are at odds and there is little middle ground between those who despise the very thought of gigantic structures lining the mountaintops and those who see the wind turbines as the solution to all our energy and global warming challenges.

I don’t know!  I have read widely on the issues and although there is ample argument put forth both for and against these projects, I cannot decide; is it good?  Is it bad?  Is it like most issues in which there are elements of both?  I do know that I would feel better if I thought these wind projects were being done for Vermonters rather than for the political expediency of the politicians and GMP.…

As I look out on every clear day from my home, on the opposite ridge, to observe the construction of the Lowell wind project I am amazed at the human endeavor that has been able over the past 15 months turn a mountain range into a commercial entity of this magnitude.  I have made 31 hikes to the mountaintops at every vantage point from the southernmost point to the northernmost point, a distance of three and a half miles, in order to see for myself the entire impact.

During that same period my wife and I have made nearly the same number of trips off trail behind Mount Pisgah, in Westmore, “Searching for Arcadia.”  The Arcadia Retreat was a large and elegant hotel built to cater to artists and writers and the like.  It was built on a 400-acre farm that had been cleared and included house, barn and outbuildings.  The hotel, built in 1895, burned down around 1923, was built way up high at 2,200 feet of elevation on Mt. Pisgah.  Although the Arcadia Retreat could be seen for miles with what was described in the advertising of the day, as expansive lawns, and although it was built on massive stone foundations, and although I already knew where it was, it took me 18 hikes to the site with maps, compass, and the assistance of Google Earth, before I could assure myself I had definitely found it.  I wonder if in the early 1890s the residents of the area supported the project or did they complain about taking a fine farm and ruining it with a luxury hotel for wealthy ner-do-wells?  Again, I don’t know, but I do know that there is almost nothing there today to show for that human activity.

I am not equating the changes made by horse, ox, and hand on Mt. Pisgah, to what modern equivalents have done with 30-40 gigantic earth machines and three quarters of a million pounds of explosives to the top of the Lowell Mountain ridgeline, but I am asking that people consider the loss of community and relationships to be on par with our loss of a natural resource as represented by a “pristine” ridgeline.  In my 30 trips up essentially all sides of the mountain range I have observed cellar holes, very old stumps from logging, log roads, old fences, stone cairns, old metal gas and oil cans, and three very old cream cans, one on the very top of the ridge just north of the northernmost turbine.  I observed, near the southern end between turbine 1 and 3 what appeared to be a four-to-six-acre rectangle of maple trees sitting right on top of the ridge and which appeared to have been cultivated there by some past steward of the land.  I have followed the Catamount Trail over the ridge from Lowell and south down along the eastern side of the ridge on its way to Craftsbury.  Not the least bit incidentally that trail basically parallels the famous Bayley-Hazen Road that was slashed through the truly pristine forest more than 230 years ago.…

I am proud of the stubborn Vermonters, both those who were born here and those who moved here for the love of it and became Vermonters.  I am proud to be in a place where people will fight for what they believe is their right to use and protect their land and where they are willing to perform civil disobedience to stand for their beliefs.

I am, however, certainly not proud to view the vicious attacks made by some of my fellow stubborn Vermonters on other stubborn Vermonters who have a differing opinion of what is “right.”  I am not proud of comments made about those who care enough to attempt to protect their land and interests or the denigrating comments about the protesters who stood for their own beliefs.…

My neighbors, friends, and I lament the loss of this Green Mountain Vermont resource, but what really defined Vermont was not only its physical makeup but rather it was its people.  The strong families, communities, and sense of shared purpose that took this land from extreme wilderness to a modern, proactive, self-sufficient state through the 1800s and a major influence far beyond its size for the rest of our country from revolution through today.  And that is precisely what we Vermonters are at stake of losing through this turmoil.  The relationships, the synergistic power of community, and the intense drive of public service; for the good of the community not for the good of myself!

In my lifetime the turbines will be there, in the next lifetime they will, if deemed worth it, remain, but in a few human lifetimes will there be visible sign?  Probably not in any way that really matters.  However the human relationships lost or cultivated will affect the “Vermonters” a lot longer and more severely than the physical ones.

Let’s go against the national trend of polarization in all endeavors and allow our neighbors to disagree with us without rancor.  We cannot mandate such action through any legislative means, order our neighbors to be tolerant, or to otherwise control others.  We CAN however change ourselves instantly.  Refuse to denigrate your friend, political foe, or competitor.  Tolerate differences and understand we go into it together and will come out of it together and if we withhold judgment and let some time pass we may well learn that we can go on together as well.

Let us search for our Vermont Arcadia, in both aesthetics and in philosophically.

Sincerely,

Dick Spaulding

Albany

(Until 1815, the town of Lutterloh)

 

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Lowell Six wind turbine protesters convicted of trespassing

Eric Gillard, the brother of one of the Lowell Six, holds a sign in front of the courthouse. Photo by Paul Lefebvre

by Paul Lefebvre

copyright the Chronicle 8-22-2012

NEWPORT — It took a jury of nine women and three men four hours to find wind opponents known as the Lowell Six guilty of unlawful trespass, following a one-day trial here in Superior Court.

The verdict appeared to reflect a trial in which a straight law and order issue trumped a disputed property boundary.

Conflicting testimony over the dispute may have confused the jurors as about an hour or so into their deliberation, they sent a note to the judge.

They wanted to know if there could be a legal owner when a property is in dispute.  And if the dispute was still current.

Trial Judge Martin Maley complimented the quality of the questions, but ruled each irrelevant.

“Do the best you can based on the evidence you heard,” he instructed them.

Disputed property boundaries were the key to the defense case:  If the state could not prove that the protesters were standing on property that was in the lawful possession of Green Mountain Power (GMP), then the defendants could not be convicted of unlawful trespass.

The prosecution argued that GMP was in lawful possession of the property, and that the protesters had broken the law when they refused to leave the land that had been posted by the company.

The trial was the first to be held involving protesters against the Lowell wind project that is being constructed by GMP.

Each of the six were arrested on December 5, 2011, when they refused police orders to leave posted property on Lowell Mountain while blocking the path of heavy construction vehicles.

Although the six presented their case as a group, the jury found each guilty as individuals.

Six more protesters are scheduled to be arraigned next month for a similar confrontation on the same mountain earlier this month.

Held Wednesday of last week, August 15, the trial was surprisingly silent on the underlying and highly charged issue that caused the defendants to break the law.  Before the jury entered the courtroom, Judge Maley warned he would only allow limited testimony on why the defendants were on the land.  And nothing, per se, on wind itself.

The jury, he said, knew what the case was about.  “It’s not a secret to them.”

So wind remained the elephant in the room:  the one everyone knew was there and agreed not to see.

Surprisingly, the only one to raise it as an issue was prosecutor Sarah Baker, when she sought to challenge the intent of the defense’s star witness, surveyor Paul Hannan of Calais, formerly of Holland and at one time a Kingdom legislator who served in the House.

Placed on the stand as an expert witness by defense attorney Kristina Michelsen, Mr. Hannan was prepared to provide the rock-bottom kind of testimony the defense needed to support its case.

Mr. Hannan testified that he had 31 years of experience as a surveyor and the credentials to qualify as an expert.  The rules of evidence, however, say that either side can challenge an expert’s witness.  And when her turn came, Ms. Baker proceeded vigorously.

First she asked Mr. Hannan about his association with Sterling College, and learned that during the years 1990 and 1991, he was one of the faculty members who accompanied students on three-to-four-day expeditions on Lowell Mountain.

The prosecutor pressed on.  Did he have any prior knowledge of Don Nelson — who allowed the students to use his property and who also is in a property dispute with GMP concerning the boundary line between his land on the mountain and the adjourning site where the utility is constructing its wind project.

No, said Mr. Hannan.

Ms. Baker may have thought she had found a chink in the defense’s armor when she abruptly asked the witness if he had any association with any anti-wind group.

Instead, the question brought a prompt objection from attorney Michelsen, along with a few hisses and murmurs from the 35 or so spectators in the gallery, a largely anti-wind crowd.

Judge Maley sustained the objection and Ms. Baker sat down, taking with her any references that the industrial wind project on Lowell Mountain had anything to do with the case.

There was a stirring in the closing moments of the trial when one of the defendants, Dr. Ronald Holland, took the stand.  The doctor’s name had surfaced earlier in the trial when Deputy Sheriff Phil Brooks testified for the state.

Of the ten protesters on the mountain that day, the deputy said he only knew Dr. Holland from previous personal and professional encounters.  He went on to testify that about two weeks prior to the December 5 confrontation, he received a call at home from Dr. Holland.  The doctor, according to the testimony, told the deputy he was going to the mountain that day to protest and wanted the deputy to arrest him.

“I informed him I was off duty and it wasn’t going to be me,” Deputy Brooks testified, adding that he passed what he characterized an “odd request” on to the State Police, who didn’t do anything either.

That testimony was before the jury when Dr. Holland took the stand late in the day.  The 67-year-old resident of Irasburg told jurors that days prior to the confrontation with police, he had gone onto the site and measured with twine the distance where he believed Mr. Nelson’s property ended.

And on the day of the confrontation, he testified he went to the limit of that measured distance.

But in a question that had nearly everyone in the courtroom leaning forward on the edge of their seats, Ms. Michelsen asked the emergency room doctor why he had climbed to the top of Lowell Mountain on December 5, 2011.

He paused and bowed his head a moment before answering that he had gone there to “protest the taking of Don Nelson’s property.”

Defendant David Rodgers, 69, of Craftsbury followed Dr. Holland to the stand and testified that he too believed he was on the Nelson property when police moved in to arrest him.

He testified that Dr. Holland had tied a block of wood to the end of a string as a means of measuring the property’s boundary.  And that he was “very careful not to” trespass on the land GMP is leasing to erect its 21-turbine wind plant.

The procession to the stand might have continued had not the prosecution agreed to stipulate that the remaining four defendants had followed the doctor’s lead.

But if the defense thought a protest over property rights could overturn the confrontation that followed, the jury saw it differently.  Nor did any witness refute or challenge the deputy’s testimony over what happened that day.

Deputy Brooks testified he received a call around nine that morning from GMP, informing him that protesters were on the mountain blocking heavy equipment from working on the wind project.  Police arrived roughly two hours later, and observed that the group was blocking cranes and big trucks.

“They were stopped on either side of where the defendants were,” he testified.

Deputy Brooks testified that prior to December 5, GMP had shown him a map of the project and its property boundaries.  And when confronting the protesters, he said he gave everyone the opportunity to step back behind the property line between GMP and the Nelson farm.

Of the ten protesters, three complied with a police order to step aside.  Six refused and were placed under what sounded like a gentleman’s arrest.  The deputy said he chatted cordially with the defendants and discussed everything but the project going on around them.

“I limited myself to that,” said Deputy Brooks.

The biggest problem police encountered that day, the deputy added, was finding a way to transport their prisoners off the mountain.

Police also arrested a seventh individual, Chronicle publisher Chris Braithwaite, who is challenging his arrest on grounds he was there doing his job as a reporter.

GMP’s intent to keep people off the site and the property it has under lease was deliberate and thorough, according to its project manager Charles Pughe, who also oversaw the posting.

“We cleaned out several stores,” he said, speaking of the no trespassing signs the company purchased.  “We had to have so many of them.”

Mr. Pughe testified that the land was initially posted for safety and to keep hikers out of harm’s way.  But he also noted that problems with people at the site began appearing sometime in October, as campers began to gather on the neighboring Nelson land.

Terms of the lease gave GMP authority to exclude or allow access to anyone the company chose, he said.

Mr. Pughe was off site the day the protesters were arrested.  But under cross-examination by Ms. Michelsen, he said, he could tell from photographic evidence — including photographs taken by the arrested journalist — that the protesters were on GMP’s leased property at the time of their arrest.

He estimated the face of the turbine would be about 200 feet away from the Nelson boundary line.

From the moment he took the stand it was evident that Don Nelson was not going to be a friendly witness.

He gave mostly monosyllabic responses to the prosecutor’s questions, and when asked to read a document, he shrugged and said he didn’t have his glasses.  That brought a query from the bench

“Need your glasses, Mr. Nelson?” asked Judge Maley.

“Don’t have them with me,” replied Mr. Nelson.

The prosecutor decided to try a different tack by asking the witness if he had given Dr. Holland permission to go on his property.

“My land is open.  People come and go,” he replied.  “I don’t invite or not invite.  We don’t post it.”

When Ms. Michelsen’s turn came to ask the questions, Mr. Nelson said that Dr. Holland had come to see him about the boundary dispute, and that he had provided him with the coordinates that were in disagreement.  According to his testimony, the dispute began years ago with the landowner who leased the land to GMP.  At the time, the witness testified, there was a difference of roughly 420 feet.

For its final witness, the state put on the surveyor who recently bought out a surveying business in Derby Line that surveyed the Nelson property several years ago in hopes of resolving the boundary dispute.

Andrew Nadeau testified that the previous owner had surveyed the property in dispute in 2007, and that he had spent in excess of two weeks surveying it as well.  But the surveyor who spent the longest time on the stand turned out to be the expert for the defense, Mr. Hannan.

Throughout his testimony, Mr. Hannan repeatedly testified there were fundamental mistakes in the 2007 survey — that affected the boundaries of lots leased by GMP.

He told jurors that in surveying the same ground, he found that markers had been inappropriately defined.  He said there must be corroborating evidence to define a marker or monument that had been used in the past when the land was first surveyed.  And such markers, he added, could be used to determine boundaries.

“When is a stone pile a stone pile or a monument?” he asked at one point.

Jurors already had heard from Mr. Nelson that surveying is not an exact science, and depends in part on the quality of surveys done in the past.  Mr. Nelson noted that he and his neighbor had tried to settle survey discrepancies on their abutting lands through an agreement.  Their boundary dispute was rekindled, however, when the agreement came unraveled.

Mr. Hannan testified that in surveying the land for the Nelsons, he found almost no markers on the ground that were left when the land was first surveyed in 1790.  And he told the jurors that the monuments defined by the 2007 survey were inaccurate.

Closing arguments were short, lasting about five minutes apiece.  Each attorney offered similar arguments to those they had made in their opening statements.

The verdict clearly took the defense and its supporters by surprise.  After asking the judge to poll each juror for a verdict, Ms. Michelsen said she would be filing post trial motions.  The court gave her ten days to submit them.

Prosecutor Baker said she would be requesting a restitution hearing, which means the state will try to convince the court to order the defendants to pay compensation to GMP.

The late hour verdict led the defendants to call off a press conference they had planned to hold at the conclusion of the trial.

In a press release Monday, Dr. Holland was quoted as saying:

“We are obviously disappointed with the verdict but respect the jury’s efforts. This is, and will continue to be, a complex case that rejects the simple and disingenuous offerings of Green Mountain Power.  We will continue to educate Vermonters on the science and math of ridgeline wind-generated electricity.”

As Mr. Pughe was walking away from the courthouse, he said he hoped the verdict would make his job easier.

The remaining four defendants of the Lowell Six are:  Ryan Gillard, 23, of Plainfield; Suzanna Jones, 50, of East Hardwick; Ann Morse, 48, of Craftsbury; and Eric Wallace-Senft, 46, of West Woodbury.

contact Paul Lefebvre at paul@bartonchronicle.com

For more free articles from the Chronicle like this one, see our Editor’s Picks pages.  For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital.

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Tractor-trailer with turbine tips over

A state trooper measures the length of the path the upended trailer’s wheels made in the roadside grass. Photos by Chris Braithwaite

copyright the Chronicle July 25, 2012

by Chris Braithwaite

The bottom section of a massive wind turbine bound for Green Mountain Power’s Lowell Mountain project tipped over Thursday, July 19, when it encountered a paving crew on Interstate 91.

The interstate was closed to southbound traffic for about three hours Friday morning while a crane retrieved the long white tube from the ditch and put it on a truck.  The load made it to the job site on Route 100 south of Lowell Village just before noon on Friday, according to Phil Brooks, chief deputy of the Orleans County Sheriff’s Department.

The highly specialized tractor-trailer, owned by Lone Star Transportation, was in the passing lane, just north of the Orleans exit, when a left rear tire left the pavement and hit soft ground.  Tire marks in the roadside grass indicate that what followed must have been an agonizingly slow catastrophe.  The marks moved ever further from the pavement, ever lower down a gentle slope for 500 feet until they came to the trailer, its rear wheels overturned in the ditch.  The tractor remained upright.

Speed was not a factor, State Trooper Rajesh Hailey said in his press release, and the driver, Jimmy Maddox of Gainesville, Texas, was not hurt.

Deputy Brooks said a crane was immediately dispatched from Desrochers Crane Service in Derby.  It was unable to lift the tower section, but did assist a larger crane that arrived early Friday from Massachusetts, Mr. Brooks said.  The interstate was closed at about 8 a.m. to allow space for the big crane to set up.  Once that was done, Mr. Brooks said, it took only half an hour to recover the tower section.  The highway was reopened at about 11 a.m.

A section of a wind turbine destined for Lowell Mountain rests in the ditch beside Interstate 91, just north of the Orleans exit.

Under the terms of its permit and state law governing overweight loads, Mr. Brooks said, Green Mountain Power’s contractor can use the highways from half an hour before sunrise to half an hour after sunset.  However, loads must lay over in a “safe haven” between 7 and 8 a.m., noon and 1 p.m., and 4 to 5 p.m., Mr. Brooks said.  Thursday’s load had just pulled out of the Coventry rest area when the accident occurred a few miles south, at 5:16 p.m.

Opponents of Green Mountain Power’s project, who held up a truck for about two hours on July 16, may continue to try and block the loads.  The Mountain Occupiers, a group that has spearheaded several acts of civil disobedience in opposition to the project, scheduled a “civil disobedience training” in Craftsbury on Tuesday evening, July 24.

In an e-mail announcing the training, the group said:  “As our powerful actions blocking the turbine trucks in Lowell showed, our cause can draw crowds, media, support, and even negotiate with the law.  We don’t have to be bystanders to the destruction of our state.  The time for action is now!”

Two protesters were arrested on July 24 after they stepped in front of a truck just before it turned into the Lowell site.  They were cited for disorderly conduct, but released from custody after negotiations with police in which protesters agreed to clear the highway.

contact Chris Braithwaite at chris@bartonchronicle.com

For more free articles from the Chronicle like this one, see our Editor’s Pick page.  For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital.  

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Protesters stop Lowell turbine truck

A Lowell wind project protester confronts State Police Corporal Dan Kerin as he tries to clear people off Route 100 Monday. Opponents of the Green Mountain Power project stopped a truck hauling a section of a turbine tower for about two hours before a compromise was negotiated with police. Our story starts on page nineteen. Photos by Chris Braithwaite

copyright the Chronicle July 18, 2012

by Chris Braithwaite

LOWELL — Though it was billed as just a “rally” and an opportunity for opponents of the Lowell Mountain wind project to “greet the turbines” as they arrived, Monday’s confrontation here turned into a brief but intense exercise in civil disobedience.

Gathering across Route 100 from the gate to the 21-turbine wind project at 9 a.m., protesters seemed content to wave signs and sing songs that condemned the project.

But when a truck hauling a long section of turbine tower finally appeared, a handful of protesters rushed into the road and stopped it.  The quick arrest of two of them seemed only to draw others onto the highway in front of the idling truck.

Two Lamoille County deputies who had been hired by the project’s owner, Green Mountain Power, tried to “walk” the truck through the protesters, pushing them aside as they encountered them.  But that proved to be a futile exercise that one demonstrator described later as “herding an amoeba.”  Demonstrators flowed around the deputies to post themselves in front of the truck and bring it, once again, to a halt.

A group of Bread and Puppet performers had come to the scene in the Glover theater company’s distinctly painted bus, and their banners and fiercely beating drums brought fresh resolve to the protesters.  As the two deputies and uniformed security guards at the site stood by in frustration, the crowd chanted “Shame on you!” and “Turn it back!” at the bright red truck and its hapless driver.

As protesters line Route 100, watched closely by police officers, the turbine section finally pulls onto Green Mountain Power’s construction site.

It took some time for the first State Police officer to arrive.  And when Corporal Dan Kerin stepped out of his cruiser he encountered the same tactic that had confounded the deputies.  Each protester in turn yielded to the corporal’s direct order to clear the road, then stepped back onto the pavement when he moved on to the next protester.

But State Police officers started to arrive in force, backed up by Orleans County deputies and officers with the U.S. Border Patrol, Fish and Wildlife and VTrans.  Sets of hand restraints were brandished, and police dogs were sighted.  An onlooker who scouted the area on his bicycle reported counting 22 law enforcement vehicles at the scene.

Lieutenant Kirk Cooper, commander of the State Police Derby barracks, stepped into the middle of the crowd of demonstrators and appealed for a peaceful conclusion.

“You’re perfectly entitled to voice your non-support,” he told the demonstrators.  “But other people have to use this road.  That’s where we get in the middle.

“I’m not gong to give you a lot a crap,” the lieutenant continued.  If they didn’t move, he told the demonstrators, “we’re going to be forced to move you.  I honestly don’t want to do that.”

The officer’s plea was seconded by one of the Lowell project’s most determined opponents, Don Nelson.

“We’ve made our point, boys,” Mr. Nelson said.  “It’s time to back off.”

Some protesters heeded that advice, but some did not.  Police, gathered in a clump just beside the idling truck, seemed ready to move.  But leaders of the group were clearly anxious to avoid the confrontation that seemed moments away.

Pat Sagui, Steve Wright and Stephanie Kaplan, a lawyer who worked with opponents of the Sheffield wind project, talked to Lieutenant Cooper and Lamoille County Sheriff Roger Marcoux.

The deal they struck was that protesters would clear the highway if the sheriff released his two captives.  They were a key leader of the opposition, Ira Powsner, and his younger brother, Jacob.

Ira Powsner of Ira is placed under arrest moments after stepping out onto Route 100 to stop a truck carrying part of a wind turbine.

After they were issued citations to appear in court on September 11 to answer charges of disorderly conduct, the brothers stepped out of the sheriff’s vehicle to the cheers of protesters.  They sang “Happy Birthday” to Ira Powsner on the occasion of his twenty-sixth birthday.

The protesters returned to the side of the highway, the officers lined up to keep them there, and the truck finally hauled its long, white load through the gates and onto the construction site.

Watching from just inside that site, Lowell Selectman Richard Pion was less than pleased by the compromise.

“They ought to take half those people to jail,” he said.  If police lacked the vehicles to get them there, he added, “they should go get a school bus.”

“They can demonstrate, but there’s no need of blocking traffic,” Mr. Pion said.  “I thought this was the land of democracy,” he added, noting that a solid majority of Lowell citizens voted for the wind project.

Like most who tried to count the protesters, Mr. Pion estimated that there were about 100 of them.  “That shows there’s only a handful that’s opposed to this,” he said.

When traffic finally started to move past the Green Mountain Power gate, it consisted only of a handful of heavy trucks that had been held up in both directions, and one Army truck driven by what appeared to be a National Guardsman.  Most traffic was apparently able to drive around the obstruction on Mink Farm Road, which loops to the west of Route 100.

While Green Mountain Power’s chief executive, Mary Powell, was not visible at the scene, Vermont Electric Cooperative’s CEO, David Hallquist, was on hand.  His utility has agreed to buy a small share of the project’s power, at cost.

Asked by a reporter if he was upset by the demonstration, Mr. Hallquist replied that he would have been disappointed if no one had shown up.  Some of Mr. Hallquist’s remarks were recorded on film by his son, Derek Hallquist.  The younger Hallquist is working with the documentary filmmaker Aaron Woolf of New York State, whose best-known work is King Corn.

In the hard hat and safety vest provided by Green Mountain Power, Mr. Woolf and his crew were easy to mistake for employees of the utility.

Standing just inside the work site, facing the demonstrators across the road, Mr. Woolf noted that if people stood on his side of the road, they were pro-wind.  People on the other side of the road were anti-wind, he continued.

“And if you stand in the middle of the road, you get run over.”

The section of turbine tower had been held up on the highway for about two hours.  And as demonstrators headed north on Route 100 after the rally, they quickly encountered a second section of tower on its way to the site, closely followed by a long, slender turbine blade.

contact Chris Braithwaite at chris@bartonchronicle.com

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East Haven wind farm slips on Champion’s slippery slopes

by Paul Lefebvre

copyright the Chronicle March 15, 2006

MONTPELIER — The long shadow of the former Champion lands appears to have sealed the fate of a proposed wind farm on East Mountain in East Haven.

Encumbered by conservation and public access easements, those lands turned out to be the recurring reason behind a recommendation released Friday to deny a certificate of public good to East Haven Windfarm, the Montpelier-based company that seeks to erect four 329-foot turbines on the mountain’s summit.
“In short, I conclude that while this may be the right project, it is in the wrong place,” wrote Kurt Janson, the hearing officer with the Public Service Board (PSB) who presided over the case.
The recommendation now moves on to the three-member board that will issue the final order. Actually only two members will act on the recommendation as PSB chairman James Volz has recused himself from the case.
The recommendation, which would scuttle the project, came after a lengthy process that involved rounds of public and technical hearings in an atmosphere that became highly charged between supporters and opponents.
In a written decision that came to nearly 90 pages, Mr. Janson acknowledged the almost irreconcible differences that arose in the case when he spoke of trying to strike a balance between “two fundamental state policies: promoting in-state renewable resources and protecting Vermont’s ridgelines.”
Charges that he failed to find a balance were part of the reaction to the recommendation offered by the project’s developers.
“We think the hearing officer was in error, and hope to convince the Public Service Board not to follow his recommendation in its final order,” said Dave Rapaport, the company’s vice-president, in a phone interview Tuesday.
For the fledgling industry, the recommendation appears to have caught developers off guard.
“Everyone is in disbelief over it,” said Mr. Rapaport, who implied that investors may be having second thoughts about putting their money into wind. “It does elevate the risk.”
Parties have two weeks, or until March 27, to reply to the hearing officer’s recommendation in writing. And any of the parties — there are 11 in all including individuals, state agencies, utilities and nonprofits — may request oral arguments before the board.
For those who opposed the project, the recommendation had the satisfaction of a hard-earned vindication.
“Large scale wind is totally out of character with the state of Vermont,” said Don Nelson of Albany, a member of the Kingdom Commons Group (KCG), which is opposed to building wind farms on ridge lines.
KCG reputedly spent more than $200,000 fighting the project, which was filed with the board in November 2003.
Katie Anderson, a KCG activist who came to the state after the Champion deal was concluded, drank champagne Friday night after the recommendation was released.
“It was great to learn that after all this time,” she said in a Tuesday phone call. “It was heartening to hear him value Champion. It’s a treasure we have to protect.”
Essentially, the case presented by Mr. Janson was site specific. It was tightly wrapped around a special piece of land that has been conserved and protected for both its ecological and social values. And in reaching his conclusions, the officer may have been serving notice that environmental and conservation standards will not be lowered for an industry that is at the center of the state’s push to harness and produce renewable energy.
“He evaluated this case on existing law,” said Warren Coleman, head counsel for the Agency of Natural Resources (ANR).
Indeed, nothing in the recommendation discredits the viability of wind power. Arguments that suggested wind is economically unsound, lacks reliability, and poses safety and noise issues were dismissed by the officer, often on grounds that their conclusions could not be supported by the facts.
For example KCG argued that the turbines would not go as far as promised in cutting emissions. Mr. Janson refused to accept their premise:
“The issue is not a comparison of new wind generation to new demand-side resources, but rather a comparison of new wind generation to no new resources of any kind,” he wrote. “Under that appropriate comparison, the proposed wind turbines will result in avoided air emissions.”
But in analyzing whether the project’s costs outweighed its benefits, the hearing officer focused on the region itself, its character, or what he called its “intactness,” which he said has been “enhanced by the remoteness of the landscape.”
At 3,429 feet, East Mountain is the second highest mountain in the Northeast Kingdom, a region that comprises 2,207 square miles or 21 percent of the state’s land mass. The towers would go up on 17 acres that in the 1950s during the Cold War were part of a U.S. Air Force radar base. And East Mountain and the project, noted Mr. Janson, would be surrounded by 132,800 acres of timberland that formed the Champion land before it was bought and broken up with parcels going to the state, the U.S. Fish and Wildlife Service, and Essex Timber Company.
Overall, according to testimony from the hearings, $40-million in public funds has been invested in the land to insure public access and to conserve its wild and rugged character. For Mr. Janson, it represented an investment that needs to be protected.
“The proposed Project would be incompatible with the remote, undeveloped nature of the surrounding conserved Champion Lands,” he wrote.
Mr. Rapaport said Tuesday he was surprised by the emphasis the recommendation placed on the Champion lands. Developers had argued the lands comprised a working forest rather than a wilderness; a context, they said, that would be compatible with four 1.5-megawatt turbines, capable of supplying power to roughly 3,000 homes.
Besides, he added, the public investment went into land as far north as the Canadian border, and only $4.5-million went into the Champion lands.
“So what public investment went into buying public access into 20,000 acres?” he asked, speaking of the portion of conserved land that would have been in the viewshed of the turbine.
Along with the public investment, the hearing officer also gave lengthy consideration to the aesthetic argument, which reduced to its finest point, asked the following question: “Does the project offend the sensibilities of the average person?”
At several miles distant, Mr. Janson found “that the proposed windfarm would not be so out of character with its surroundings, or significantly diminish the scenic qualities of the area, as to be offensive or shocking to the average person.”
But the effect on the average person seeking to recreate on Champion lands would be just the reverse. In reaching his conclusion, the hearing officer broke ranks with the Department of Public Service — the public’s advocate — whose expert argued that average people were unlikely to go to such a remote area to recreate.
“This argument fails to recognize the very values that the public investment in the Champions Lands is designed to protect: the remote, rugged, undeveloped nature of the lands,” he wrote.
“The users of the lands are seeking the remote, wilderness experience that is the cornerstone of the substantial public investment in the former Champion Lands. Indeed, the concerted effort that users must make to reach these remote, undeveloped lands make the intrusion of commercial-scale wind turbines that much more out of context and, consequently, even more shocking and offensive.”
Among those who participated in the PSB hearings that went on for nearly two weeks during March and April 2005, the recommendation came as something of a surprise.
Mr. Coleman, an attorney with the Agency of Natural Resources (ANR) who argued against the project on grounds more wildlife studies were needed, said the recommendation clearly supported the belief that the public’s enjoyment of the Champion lands would be adversely affected if the project were allowed to go forward.
“It may be more difficult to raise similar findings elsewhere,” he said speaking in a phone interview Tuesday.
ANR had argued last year before the hearing officer that the project should be delayed until more studies on migratory birds and bats could be conducted. But Mr. Coleman noted Tuesday that while these studies could have been carried out by the developer, there is little that could be done to mitigate the project’s effect on those who go onto the Champion lands to enjoy its remote and rugged setting.
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