A federal appeals court in New York on Wednesday temporarily halted an effort by Connecticut to sign contracts for renewable electricity after a solar power developer complained that the process the state used to solicit renewables breached federal law. The lawsuit is the latest in a string of challenges to state efforts supporting certain types of electricity generation.
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Legal experts say the challenge to Connecticut’s renewable incentives is unique for many reasons. While the dormant Commerce Clause has been cited in cases regarding clean energy policies, it has not been used against a state that limits its renewable energy to the region, rather than the individual state.
The Connecticut Supreme Court announced Monday a unanimous decision backing a state agency regulating wind energy, rejecting a challenge by opponents of a wind energy project. The court ruled 6-0 that a trial court was correct to dismiss appeals by opponents of the project by BNE Energy Inc. to build three wind turbines in Colebrook in northwestern Connecticut.
The group argued that the projects, with a combined capacity of 9.6MW, were too close to homes, meaning that the noise from the turbines and the light cutting through the blades would be detrimental to the health of local residents.
The answer to this largely procedural question has the power to slow or stop construction of the wind farm. If wind is a fuel, then the wind farm is an electric generation facility and clearly under the jurisdiction of the Connecticut Siting Council. If not, the council never had the ability to approve the wind farms as it did.
Allco filed a lawsuit against Dan Esty, the DEEP commissioner, in U.S. District Court in Connecticut, claiming the contracts amount to the state setting wholesale power rates. That’s against the Federal Power Act that gives U.S. regulators the exclusive right to oversee wholesale markets, Allco said.
Allco argued in its complaint to U.S. District Court in New Haven that Esty violated the U.S. Constitution and the federal Public Utility Regulatory Policies Act (PURPA) in establishing a fixed price for wholesale electricity. That right belongs exclusively to the Federal Energy Regulatory Commission, the company said in its lawsuit.
A proposal to build Connecticut's first wind farm in the state's Northwest Corner has been blowing around for several years. Now an appeal brought by a citizens' group that opposes the project will be heard by the state Supreme Court in coming months. The key question is whether the Connecticut Siting Council had jurisdiction when it approved the wind turbine electric generation project.