September 29, 2020

Maine Supreme Court Arguments Over Windmills

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Information provided by a member of the Partnership for the Preservation of the Downeast Lakes:

Dear PPDLW member,

Today the Maine Supreme Court heard oral arguments from Juliet Browne (for Champlain Wind) and Peggy Bensinger (Asst AG representing BEP/DEP). Neither PPDLW now Conservation Law Foundation were allowed to address the Court and neither of us were asked any questions.

Champlain Wind presented an argument that I thought was weaker than previous ones. Juliet was interrupted and was asked some difficult questions. At one point she seemed a bit flustered.
AAG Bensinger attacked firmly and quickly but when she was asked questions she faltered a bit. She did a fine job of explaining that this project is unique in the number of lakes affected, the fact that the lakes form a large system and that they are enjoyed as a system.

I won’t go into the details of exactly what was asked nor will I paraphrase the responses. You have to understand that the Justices have been studying this massive written record for nine months. They have most likely formed opinions already but wanted to hear each party expound on the key issues. They often ask questions to which they have the answers. They will play devil’s advocate to test the parties’ positions. We shouldn’t read much into the questions that are asked. They are not a good indication of the judge’s position.

The Court always give a huge benefit of the doubt to decisions made by a State agency. It take an enormous amount of compelling evidence to get the Court to overturn an agency decision. One of Judges asked Juliet if she realized that. I think for the Court to overturn the BEP’s affirmation of the DEP denial, Juliet would have had to hit the ball out of the park. I don’t think she did. If the Court is not willing to outright overturn the DEP/BEP denial, they have two options. One, they could say they don’t see enough convincing evidence of a legal error and therefore deny Champlain’s appeal and the Bowers project will remain dead. Two, the Court could remand the decision back to BEP so they can address the concerns raised by the Court and write a new decision document. In that case I’m fairly certain BEP can address those concerns and still affirm the DEP denial.

I’m not a lawyer so this is all speculation but I’m cautiously optimistic about the outcome. Obviously I’ll let you know the decision as soon as I hear.

The Board and Officers of PPDLW thank all of you who attended the Court today. As always, there were more of our supporters than Champlain’s.

Have a great mud season!

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