Wednesday, September 22, 2004

Changes in Regulatory Review of Wind Turbines Could Threaten Future Development

The Times Argus has this report this morning on the Governor's Commission on Wind Energy Regulatory Policy. The Commission, which was established earlier this year by Governor Douglas is considering changes to the regulatory review process for developing wind projects in Vermont. As part of its review, the Commission toured the Searsburg Wind Power Facility, in Searsburg, Vermont yesterday. Officials from Green Mountain Power, which developed, owns, and operates the Searsburg facility, warned the Commission that changes to the already-extensive regulatory review process could threaten planned and future wind development in the state, including the Searsburg Expansion Project.

Proposals for wind power projects in Vermont are currently evaluated by the Public Service Board under Act 248 (30 V.S.A. Sec. 248), which requires the PSB to conduct a detailed review of all proposals to develop new electrical generation facilities. Opponents of this process argue that Act 248 does not provide sufficient review of wind turbine impacts and places too little emphasis on the environmental and esthetic impacts of projects. They point to the process and criteria established under Act 250, Vermont's major development law, as an example of the type of review they believe to be more appropriate.

However, as supporters of the current Act 248 review process point out, Act 248 already directs the PSB to give due consideration to Act 250's esthetic and environmental criteria during the Board's evaluation of wind facilities. Indeed, prior to issuing a Certificate of Public Good (CPG) under Act 248, the PSB must find that the project "will not have an undue adverse effect on esthetics, historic sites, air and water purity, the natural environment and the public health and safety, with due consideration having been given to the criteria specified in [Act 250]." 30 V.S.A. 248(b)(5). And unlike the Act 250 process, where the party opposing the development bears the heavy burden of proof and persuasion, it is the project proponent's burden under Act 248 to affirmatively establish that the project will have "no undue adverse impact." In this way, Act 248 is actually much tougher for the Applicant than the Act 250 process.

To the extent that the legislature has directed the PSB to balance the environmental and esthetic impacts of a utility project against the public benefit received from development of the project, such balancing is appropriate. The nature of potential impacts associated with utility projects certainly calls for stringent review, but it is equally important to give due consideration to the public benefits realized by such projects, particularly when those benefits take the form of emissions-free, renewable energy of the type generated by wind turbines. This is not a hollow process. The PSB has in past cases recognized that environmental and esthetic impacts can and do sometimes out weigh the public benefit - and the Board has rejected proposals for some small wind projects on that basis.

Reevaluation of the review process is, at certain intervals, necessary to ensure that issues associated with new energy production methods are adequately addressed, but even if the Governor's Commission had the authority to re-write law, changes to the thorough, well-designed, and legislatively mandated Act 248 process are not called for now.

Shems Dunkiel Kassel & Saunders, which represents the potential developers of the Searsburg Expansion project, as well as other wind farm developers, has emphasized the key benefits of the current Act 248 review process to legislators and regulators over the past year as this debate has developed, and we encourage others to do the same.

The Governor's Commission is currently taking comments on potential changes to the regulatory review process. The Commission's report is due out before December 15, 2004.

For more on the Commission's work, check out this article published in the Rutland Herald last week.

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