Vinalhaven citizen lawsuit alleges political interference in wind turbine regulatory process at top level of Maine government

Vinalhaven, once only famous for its lobsters, is now also nefarious for demonstrating what happens when wind turbines are improperly permitted too close to homes.

Today neighbors of the Vinalhaven wind turbine farm filed a lawsuit against the state of Maine-after a year and a half controversy-- for failing to enforce noise regulations against Fox Islands Wind, the turbine operator. The neighbors' lawsuit charges that the decision by Maine DEP (Department of Environmental Protection) on June 30th meant to resolve the year and a half controversy of noise violations by the turbines was arbitrary and capricious and driven by political meddling at the highest levels of Maine government against the recommendation of its own regulatory staff.

The citizen lawsuit documents how DEP abandoned its regulatory mission one step at a time and finally caved to political pressure instead of protecting nearby residents from noise violations that have impacted neighbors' health, peace and quiet, and property values. The neighbors are asking the Maine court to vacate the politically driven decision and order DEP to go back and follow the recommendations of its own regulators; the effect of those recommendations would have placed the burden of proof of compliance on the wind turbine operator and held the turbine operator accountable for ongoing violations of noise standards.

Since the moment the 3 GE 1.5 megawatt turbines on Vinalhaven began to spin in November 2009, nearby residents complained their quiet properties on the island had turned into dumping grounds for noise pollution in excess of state regulations. Everywhere industrial wind turbines are placed too close to residences, there are complaints. What distinguishes Vinalhaven from other aggrieved victims of wind turbine noise is the extent to which neighbors initiated their own acoustical measurements and engagement with state regulators who admit that state standards fail to capture the acoustical impacts of wind turbines. For a year and a half, Vinalhaven neighbors carefully documented violations of the state noise standard while the wind turbine farm operator, Fox Islands Wind, continuously denied it was breaking state law. The complaint filed today details these facts.

Initially, DEP regulators were willing to use the Vinalhaven problem-where wind shear was a known, significant factor in upsetting noise and acoustic models-to pin down gaps in the state's protocol for evaluating the noise generated by wind turbines and especially violations at night-time according to the 45dbA standard.

While costs mounted for neighbors, including acoustics engineering and legal resources, state regulators began to assemble a new regulatory schematic to capture the gaps in existing law. At the same time, the Vinalhaven turbine operator launched a strong, politically driven counter-offensive against the regulators. Over time, this push-back from local advocates and finally political intervention by the Office of the Governor overwhelmed the regulators.

"We invited board members of Fox Island Electric Coop to come up and spend a few nights listening to the terrible noise," says Art Lindgren, who mastered both the methodology and presentation of acoustical measurements taken from equipment often in the dead of night. "None took us up on the offer. Instead we have moved from our home because of the noise."

Neighbors' hopes were dashed on June 30th, the date when the Maine DEP approved an operational plan for Fox Island Wind turbines that ignored, in its key details, recommendations of its own staff. Maine has four major wind farms, including Kibby Mountain in Franklin County, Mars Hill in Aroostook County and Stetson Mountain in Washington County. Rollins is about to commence operation and construction is underway at Spruce Mountain in Woodstock and Record Hill near Rumford. Wherever turbines are sited too close to residences, there are complaints from property owners whose lives have been turned upside down.

Noise from wind turbines has emerged as a serious concern in Maine where the legislature has mandated 2000 Megawatts of power to be generated from renewable energy sources by the year 2015. Financial incentives for wind power include lucrative depreciation benefits for investors. According to a recent report in Forbes, subsidies for wind power per kilowatt energy produced are 200 times the subsidy for oil and gas.

These subsidies provide huge motivation for investors to steamroller environmental protections, including noise pollution. At a recent public hearing in Augusta, one industry spokesperson referred to Vinalhaven as a facility that had given the industry "a black eye". The reason is evidence-- withheld from neighbors in the permitting phase of the project-- that neighbors would likely be subject to very high levels of noise.

The lawsuit alleges a pattern of political interference in the normal regulatory process that had already stretched out more than a year and a half at considerable expense to neighbors. The complaint alleges that the Office of the Governor interceded through the newly installed DEP Director, Patricia Aho, whose immediate prior employment had been with Pierce Atwood, the law firm that represents the wind turbine operator, Fox Islands Wind. Rather than recuse herself, one of her first decisions as newly appointed head of the state environmental agency was to reach around career regulators and change the final compliance protocol according to what Fox Island Wind wanted.

Alan Farago, a neighbor, says; "First DEP agreed with the neighbors that Fox Islands Wind was violating state noise regulations. Then with the turn of the political screw, DEP began ratcheting back the recommendations of its consultant and finally backed out of the decision by its own regulatory staff. This all happened because politics is covering up an energy project of dubious value that is profitable for a prominent Maine investor, Horace Hildreth, while imposing a heavy financial burden on nearby residents who purchased their property for rural peace and quiet and now have health issues, property value destruction, and industrial noise."

A year ago, as a result of ongoing frustration with the state regulatory agency, Farago initiated a petition, signed by 174 Maine citizens, to EPA Administrator Lisa Jackson urging a study of wind turbine noise. He wrote, "Noise from wind turbines has emerged as a national issue ... State regulations on turbine noise are an obsolete patchwork. As a result, affected individuals, homeowners and entire communities are left without defense. The time for federal regulation of wind turbine noise is long overdue."

In December 2010, EPA turned the petitioners down. The federal agency referred citizens back to Maine regulators; the same staff who were left in the dark on June 30th. Farago says, "The position taken by DEP forced ordinary taxpayers into litigation. We use after-tax dollars while Fox Islands Wind uses its marketing budget to fight us. For the misfortune of being guinea pigs of a new energy economy, we are paying through the nose."

In a separate matter, the neighbors recently filed a complaint against the Vinalhaven Electric Cooperative with the Maine Public Utilities Commission, charging that the utility had improperly billed ratepayers for the turbine operator's expenses related to ongoing regulatory issues. (https://files.me.com/alanfarago/34e13t) But at this week's annual meeting of the Fox Islands Electric Coop, news that the utility was required to respond to the Maine PUC by August 1st was not even raised. One defender of the wind turbines said, "We are bending over backwards for the neighbors." At the same time, the Town of Vinalhaven is considering whether to take back administration of the noise rule for the wind turbines from the state. The town proposes to give the responsibility to the local Code Enforcement Officer; a position that often changes hands and is chronically subject to local influence peddling.

The neighbors hope the Maine court will vacate the decision by DEP, based on evidence that it was an arbitrary and capricious action that violated recommendations of staff. They hope the Maine Public Utilities Commission will look at the serious inequities levied on ratepayers. The neighbors also hope that the US EPA will understand that noise from wind turbines is a major public concern and needs to be regulated so there are no more Vinalhavens. In the meantime the neighbors are weighing other legal recourse to protect their health, peace and quiet, and property.

For additional background including a copy of the lawsuit, please visit website.