In Supreme Court challenge to Colebrook project, lawyers argue about wind

HARTFORD — Is wind a fuel?

That question consumed much of the arguments Friday at the Connecticut Supreme Court during its consideration of a challenge to the controversial construction of two wind farms in Colebrook by BNE Energy.

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.

Together, the two projects — Colebrook North and Colebrook South — would generate 9.6 megawatts of power with six turbines on a ridge in northwest Connecticut. The total value for the development is about $24 million.
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In their questions to the lawyers about the "fuel" question, justices asked whether the statute's authors in 1970 would have considered wind a fuel, whether wind turbines existed at that time and whether the law should automatically include wind because it says "any fuel."

Emily Gianquinto, the lawyer for FairWindCT, a citizens group, argued that wind is not a fuel for the purpose of the siting council's jurisdiction. According to a plain definition of the term, fuels combust, she said, except for nuclear fuel, which gives off energy by fission inside a reactor.

"Fuel is something that burns and is used up," she said. "Wind is not a fuel."

The council's lawyer, Assistant Attorney General Clare Kindall, argued that the jurisdiction question is clear cut. Her position is that later, more specific legislation established that renewable fuel projects, like solar and wind farms, are included in the term "fuel."

Moreover, she said, "the simple answer is the legislature disagrees" with the jurisdiction question. In 2011, the legislature required the siting council to establish clear regulations for wind turbines. If the council lacked jurisdiction over wind turbines, she argued, the legislature's request for regulations would be reduced to a novelty.

In addition to the jurisdiction issue, Gianquinto argued that FairWindCT's ability to challenge the siting council as it made its decision was prejudiced because the council sealed thousands of pages of proprietary documents and refused requests for more time when the developer made changes to the project.

She raised issues with how developers and the council measured the project's noise and how developers lowered the turbines' planned height, saying it was done without proper notice.

Kindall responded that the council wasn't required to address the noise of the project, but it did anyway, measuring from residences rather than property lines, which FairWindCT says is the proper way. The lowering of the height of the turbines, to 80 meters, was to limit their visibility, she said.