Written by Gary Campbell, president of Partnership for the Preservation of the Downeast Lakes Watershed

Friday, June 6, 2014

The Sweet Taste of Victory
On June 5th, 2014 history was made in Augusta. For the first time ever, the Board of Environmental Protection (BEP) upheld the denial of a wind project in Maine. That’s right… we prevailed! Bowers Mountain and the Downeast Lakes are safe for now. Champlain Wind (First Wind) has only two options available to them now:

1. They can reconfigure the project and submit an entirely new application to DEP starting the process all over again. This is not likely because the Deputy Commissioner of DEP made it very clear, contrary to First Wind’s opinion, that any modification to the Bowers project would require an entirely new evaluation. Certainly if an entirely new application is required, as it is now, the DEP will have the ability to simply not accept the application on the grounds that the Bowers site has already been judged to be inappropriate for a wind project.

2. They can appeal the BEP’s decision to the State Supreme Court (Law Court). If they chose this route, they must file quickly. There’s a chance the Court would not even accept the case because it has been decided against First Wind three times already. If they do accept it, then First Wind will find it extremely difficult to convince the Justices that three State Agencies independently came to the same erroneous conclusions. Still, if they do decide to appeal, PPDLW will be there to fight!

Over the years I’ve asked you to attend meetings. I know how difficult it is to take time off from work and drive great distances to watch what is often a confusing proceeding. Yesterday Kay and I were seated in the front row facing the BEP members. After the final vote was taken to deny the appeals, I turned around and I honestly teared up a bit. Up to that point I had no idea that we OWNED that room! I estimate that about 30 of the 40 seats held PPDLW members who were wearing their No Towers on Bowers buttons. Some people wore more than one button to show just how long we’ve been fighting this project. I was told afterward that the number of people who willing to stand up for Bowers Mountain and the Downeast Lakes came as a complete shock to everyone. Thank you for attending. You all made a HUGE difference! The same is true with all the letters and emails you’ve written over the years.

We all go through emotional highs and lows, days of hope & confidence and days of discouragement, times when we lose faith in the system and times when trust it. But don’t let anyone tell you that you don’t have a voice. By writing those letters and emails, by attending and speaking at those hearings, we have made ourselves heard. I can’t overemphasize how important that has been. Thank you for all you’ve done.

The Nitty Gritty
You may recall that at the May 1st meeting, the BEP sent the Draft Denial Order (denying the two appeals) back to DEP for modification. At BEP’s prompting, DEP deleted a few paragraphs and corrected some typos. Nothing really consequential. We may have been frustrated that they didn’t just scribble the changes on the document, vote on it and sign it right then and there. But don’t be disappointed. This BEP decision is extremely significant as it’s the first time they’ve upheld a wind project denial. They knew that the document they sign has to be iron-clad perfect for it to withstand appeal and the kind of scrutiny First Wind will subject it to. We should be grateful that BEP and DEP have been so attentive to getting this right and doing it right.

According to the 5/1 minutes and the posted agenda, the purpose of yesterday’s meeting was to make sure the changes to the document had been made and then vote to accept the document, denying the appeals. That was why we had to return for yesterday’s meeting. But fewer than 72 hours before the meeting First Wind pulled a fast one. They pull this stunt every time it looks like they won’t get their way.

First Wind attorney Juliet Browne wrote a letter to BEP Chair Foley again arguing their case for granting the appeal. But, she wrote, if they don’t want to grant the appeal, it least remand the application back to DEP because First Wind is willing to modify the project. PPDLW immediately responded, also in writing. BEP Chair Foley decided, however, to entertain the idea of remanding for redesign and distributed First Wind’s letter, complete with new evidentiary exhibits, to the Board.

When the meeting opened yesterday, one board member expressed disappointment that First Wind would pull such a stunt at the last minute. Then each party was allowed a few minutes to make a presentation. Both appellants had to be asked to stop re-arguing the case and limit their comments to the remand issue. Interestingly, intervenors in support of the Bowers project, the Conservation Law Foundation and the Maine Renewable Energy Association did not attend this meeting. Our comments stuck to the legal issue of whether the contents of that letter could be entertained by the Board. DEP ‘s Heather Parent later stood up to confirm two of the points we made.

After brief deliberations that focused on the fact that First Wind could have modified the project at any time in the past ten months but instead decided to spring this on the Board at the last possible minute, the Board voted unanimously NOT to remand the case back to DEP.

The Board then returned to its original agenda, studying the changes and corrections that had been made to the Denial Order. Once satisfied with the document the Board voted 4:1 to accept it.

* First Wind’s appeal was denied.
* Douglas Humphrey’s appeal was denied.
* The DEP’s rejection of the Bowers Mountain wind project was upheld.

Broken Record
I was recently reminded of a comment made by a BEP board member during the Passadumkeag appeal meeting. He said he didn’t want the record to be reopened to public input because the public just keeps saying “the same old same old”. Consider these two quotes:

“An applicant does not have an opportunity to respond to agency feedback.”
~ First Wind’s Juliet Browne’s 6/2/14 letter to BEP: 72 hours before BEP denial vote

“There hasn’t been a mechanism in this process for applicants to react to feedback.”
~ Juliet Browne at LURC meeting 4/6/12: two weeks before LURC denial vote

Sounds like a wind developer delivering the “same old same old” to me!

Give yourselves a pat on the back and celebrate a turbine-free summer. I’ll keep you informed of any developments.

Enjoy the lakes!