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.