Vermont PSB Denies 'Certificate of Public Good' to East Haven Project

Discussion and Conclusions

Orderly Development, Aesthetics, and Public Investments

EMDC proposes to construct four, 329-foot-tall wind turbines in a seventeen-acre parcel at the summit of East Mountain, surrounded by the former Champion Lands that total approximately 132,800 acres. As the Hearing Officer has carefully detailed in his Proposal for Decision, the former Champion Lands have been the subject of an extensive effort to conserve their rugged, remote, undeveloped character, costing millions of dollars of public and private
funds.

The Hearing Officer has concluded that the proposed wind turbines would be so
fundamentally incompatible with the surrounding, conserved Champion Lands that the proposed Project would unduly interfere with the orderly development of the region, would have an undue adverse effect on the scenic or natural beauty of the area and on aesthetics, and would materially jeopardize or interfere with the function of the public investment in the former Champion Lands and with the public's use and enjoyment of those lands.

Notwithstanding this conclusion, the Hearing Officer acknowledges the substantial benefits of renewable energy projects such as this, and the corresponding fundamental state policy to encourage the development of in-state renewable generation. As the Hearing Officer correctly observes, the proposed Project would provide a number of benefits to the people of
Vermont and to the region, including:

• promotion of fuel diversity and energy independence in Vermont's energy portfolio;
• economic benefit to LED and its ratepayers through the sale of the project's output to LED at five percent below the market price, and from LED receiving ten percent of any Renewable Energy Certificates from the project;
• slightly lower market electricity prices in the region, with the benefit being greater for customers located closer to the project;
• helping meet the regional demand for renewable energy;
• property tax revenues to the State of Vermont and to the Town of East Haven;
• short- and long-term economic benefits to the region from increased employment; and
• avoided air emissions through displacement of fossil-fired generation.

We recognize, as does the Hearing Officer in the Introduction to the Proposal for Decision, that deciding whether to approve this wind-generation facility requires a balancing between the decided benefits of this clean energy resource and its undeniable adverse impacts on the surrounding conserved landscape. Consistent with this Board's precedent, our consideration of a project's impacts on aesthetics and scenic or natural beauty must be "significantly informed by overall societal benefits of the project."122

We adopt most of the Hearing Officer's findings with respect to the proposed Project's impacts on the orderly development of the region, on aesthetics, and on the public investment. Where we part company with the Hearing Officer is in our assessment of the scope of those impacts, and in the balance we strike when we weigh those impacts against the benefits of this renewable-energy facility.

The record before us shows that the proposed Project is unlikely to be visible from the vast majority of the conserved Champion Lands. The record also reveals that relatively few members of the public visit the Champion Lands, and of those who do, a substantial proportion are engaging in activities – particularly snowmobiling and hunting – the enjoyment of which is unlikely to be significantly degraded by the presence of four wind turbines on the summit of East  Mountain.123 Thus, while the proposed Project would have adverse visual impacts from a few select locations within the conserved, former Champion Lands, those impacts would be limited.

With respect to the orderly development of the region, the Hearing Officer has concluded: "For the development of this region to remain orderly, it must respect the concerted efforts to preserve the remote, undeveloped nature of the Champion Lands."124 Although we agree in general with the Hearing Officer's sentiment that orderly development of the region should remain consistent with the conserved nature of the Champion Lands, we conclude that the proposed Project, with four wind turbines placed atop a previously developed mountain, with an existing road and nearby power lines (including the DC transmission line which runs directly through the Champion Lands), and with visibility limited to a small portion of the Champion Lands, would not so negatively affect the character of the surrounding conserved lands as to impede the orderly development of the region.

We similarly conclude, after taking all of these considerations into account, that the proposed Project will not materially jeopardize or interfere with the public's use and enjoyment of the public and quasi-public investment in the former Champion Lands, nor with the function of that investment,125 and will not have an undue adverse effect on the scenic or natural beauty of the area and on aesthetics.

Accordingly, we hereby reject Findings 63, 165, and 263, and modify Findings 37, 155, and 254 to read as follows:

37. The proposed Project will not unduly interfere with the orderly development of the region, with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality. This finding is supported by Findings 38 to 62, below.

155. The proposed Project will not have an undue adverse effect on the scenic or natural beauty of the area and on aesthetics. This finding is supported by Findings 156 through 180, below.

254. The proposed Project will not unnecessarily or unreasonably endanger the public or quasi-public investment in, or materially jeopardize or interfere with the function, efficiency, safety, or the public's use, access to, or enjoyment of, public resources facilities, services, or lands. This finding is supported by Findings 255 through 265, below.

Birds and Bats

The Hearing Officer recommends that we find that EMDC has not presented sufficient evidence to conclude that the proposed Project would not have an undue adverse impact on birds and bats. We concur. As noted in the Proposal for Decision, little is currently known about the distribution, abundance and stability of Vermont's bat populations, especially migrant species.

This lack of knowledge extends to such crucial information as the altitudes at which bats migrate. We do know, however, that bats in Vermont have low reproductive potential, generally producing one offspring per year. We also know that wind turbine sites located in eastern forested high-elevation sites have experienced elevated bat mortality rates. And we know that there are likely to be resident bat populations on East Mountain, based on the limited field study that has been performed to date by parties other than EMDC.

These facts lead us to conclude that, without sufficient study of (1) the resident bat populations near the site of the proposed Project and (2) the numbers and elevations of migrating bats passing over the project site, we are unable to find that EMDC's proposed wind turbines would not have an undue adverse impact on bats.

We reach a similar conclusion with respect to the potential impacts on migratory birds. The record shows that there is little solid information on the risks of migrating bird collisions with wind turbines for high-elevation sites in the northeastern United States. Without preconstruction radar studies, we are unable to determine whether the project's design has been optimized to avoid or minimize bird impacts.

While the proposed Project may be relatively small in scale, consisting of four 329-foottall turbines, its size alone does not provide enough evidence that it would not have undue adverse impacts on resident and migratory bats and birds. We cannot sufficiently gauge those impacts without the site-specific studies that EMDC has elected not to supply.126

Therefore, we adopt the Hearing Officer's findings, conclusions and recommendations concerning the proposed Project's impacts on birds and bats, and we accordingly deny a Certificate of Public Good to EMDC.

Other issues raised by the parties' comments on the PFD

In their comments on the Hearing Officer's Proposal for Decision, the parties have raised a number of additional issues, as noted above. These issues include, among others, the requirements that should be included in a decommissioning fund, and whether EMDC has excessively relied upon the use of post-certification filings such that it has failed to provide sufficient information to support positive findings on many of the Section 248 criteria.

Each of these additional issues been addressed by the Hearing Officer in his Proposal for Decision.127 We have carefully reviewed the parties' comments on these additional issues, and find in those comments no basis for changing the Hearing Officer's recommendations. Instead, for the reasons that the Hearing Officer has presented in the Proposal for Decision, we adopt his findings, conclusions, and recommendations on each of these additional issues.

V. ORDER
IT IS HEREBY ORDERED, ADJUDGED AND DECREED by the Public Service Board of the

State of Vermont that:

1. The findings, conclusions and recommendations of the Hearing Officer are hereby adopted, as modified above.
2. The proposed Project will not promote the public good of the State of Vermont, and a certificate of public good shall not be issued pursuant to 30 V.S.A. § 248.
Dated at Montpelier, Vermont, this 17th day of July , 2006.