DEP argues court has no say in Vinalhaven wind turbine noise level enforcement

PORTLAND, Maine — The Maine Department of Environmental Protection argued Tuesday that the state’s highest court has no authority to order the agency to take tougher action to reduce noise levels from wind turbines on Vinalhaven.

The Maine Supreme Judicial Court heard arguments Tuesday on an appeal by the DEP of a Kennebec County judge’s ruling in March that chastised Commissioner Patricia Aho for her role in responding to complaints by Vinalhaven residents about noise from the Fox Islands Electric wind turbines.

Attorney Gerald Reid, who represented the DEP, said Tuesday that state law specifically prohibits judicial review of the enforcement of a final agency rule. Instead, Reid said the wind farm neighbors should have appealed to the Board of Environmental Protection, a citizens’ panel, or filed a nuisance lawsuit against Fox Islands in court.

At issue is a decision by Aho in June 2011 to overrule her staff recommendations concerning the enforcement of noise levels from the island turbines. Justice Michaela Murphy ruled on March 10 that Aho’s decision was not based on relevant evidence and ordered the department to reassess its enforcement based on such evidence.

Murphy criticized Aho for participating in the department’s handling of the Fox Islands case because Aho had worked as an energy industry lobbyist for Pierce Atwood LLC before she was appointed deputy DEP commissioner and then acting commissioner in June 2011.

Pierce Atwood represents Fox Islands Electric. Supported by most island voters, the $14.5 million three-turbine facility began operating in October 2009 as a way to reduce electricity costs on the islands of Vinalhaven and North Haven. Not long after, however, neighbors complained that the nearly 400-foot turbines routinely exceeded noise levels allowed under the facility’s DEP permit.

In September 2010, a consultant working for DEP said data suggested that the turbines were generating more noise than allowed under certain weather conditions and therefore should be modified to avoid affecting nearby residents at night. DEP staffers two months later directed Fox Islands to submit revised operational plans to avoid sound levels exceeding 45 decibels during wind shear events. But the company appealed and the DEP’s compliance order was rewritten substantially.

A lawsuit by Fox Islands Wind Neighbors contends that, just 10 days after she became acting DEP commissioner, Aho went against the consultant’s and the department’s professional staff recommendations and weakened the compliance order so that it likely would not require major modifications to the project.

In her Superior Court ruling last March, Murphy stated, “That issue, which could have been avoided, has created an enormous amount of mistrust by the [Fox Islands] neighbors as to whether their grievances can receive fair treatment by the commissioner and the department.”

During Tuesday’s hearing before the supreme court, Rufus Brown, the attorney representing island neighbors, raised the issue of Aho’s potential bias once. The justices, however, did not make statements or ask any questions about Aho’s prior connection to Pierce Atwood.

The justices on Tuesday were more focused on the issue of whether they could order the DEP to change its standards for what noise level is acceptable for the turbines. One of the justices made an analogy to how the court could not order a prosecutor to charge someone with attempted murder if the prosecutor had decided to file an assault charge.

Brown said the department has a duty to explain why it would change the conditions placed on wind turbines. One justice asked whether that meant the court can step in anytime there is a change in an administration of an agency and different enforcement is taken.

Brown contended that the court could step in, but he was not able to point out a court ruling in Maine that supported that argument.

There is no timetable under which the justices must issue their decision.