Maine Supreme Court hears appeal of Passadumkeag wind project approval

PORTLAND, Maine — The fate of a 14-turbine wind project proposed for Passadumkeag Mountain rests with the Maine Supreme Judicial Court after justices heard oral arguments Thursday.

The appeal is led by project opponents Passadumkeag Mountain Friends, who are contesting the citizen-led Board of Environmental Protection’s decision last year to approve the project in Grand Falls Township.

Quantum Utility Generation, a Houston-based alternative energy company, is the developer for the project, which is led by Passadumkeag Windpark LLC and Penobscot Forest LLC.

Controversy has trailed the project since Maine Department of Environmental Protection Commissioner Patricia Aho in November 2012 rejected the developers’ permit application based on her assessment that a wind farm would adversely affect the scenic character of the region, specifically near Saponac Pond. In 2013, the Board of Environmental Protection voted twice — in March and November — to overturn Aho’s decision and allow the project to move forward.

The major question before the court Thursday was just what type of review the citizen-led Board of Environmental Protection should give to appeals of wind project siting decisions made by Department of Environmental Protection staff. Justices acknowledged Thursday that their task is to decide whether the board’s function is to essentially rehear the case and incorporate new evidence or to simply review the decision based on evidence previously presented to the DEP during its decision-making process on site permits.

The parties fighting BEP approval of the Passadumkeag development argue that the board was wrong for not deferring to the DEP’s factual finding that the project would have an adverse impact on the area. The opponents have also argued the Board of Environmental Protection members erred in communicating privately with company representatives during the proceedings.

Peggy Bensinger, an assistant attorney general assigned to the board, said Thursday that she and other staff also communicated privately with opponents of the project and that neither party communicated directly with the board members during the process.

It’s not clear when the court will issue an opinion in the case heard Thursday. That result could also send the decision back to regulators with clarifying instructions about what standard of review should be applied.

Part of the confusion for justices Thursday was that the BEP approved the project based on largely the same record upon which the DEP had denied it.

The DEP’s denial of the project in late 2012 was the first time it turned down a wind power project. The BEP’s reversal of the department’s decision elicited a response from Gov. Paul LePage at the time, who said the decision was disappointing.