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Klein: Retroactive noise standard provision may be unconstitutional

“If they come back and say, ‘We’re concerned about this retroactive date of April 15, and we believe you should make it upon passage, the effective date’ … we’d have to remove the April 15 date and the only way we could do that would be through a conference committee,” Klein said. “We are preparing for all eventualities.” The April 15 deadline ensures that a wind project proposed in Swanton would have to comply with the new standards, Klein said.

The state Senate passed an energy-siting bill Wednesday that would impose new sound limits on future wind-energy projects, but a House representative questions whether the proposal is constitutional.

Rep. Tony Klein, D-East Montpelier, chair of the House Natural Resources and Energy Committee, has asked the Vermont Attorney General’s Office to give lawmakers an opinion on the provision in S.230.

The legislation would require the Public Service Board to write sound standards for wind turbines by September 2017. The law would go into effect retroactively, including project applications submitted on April 15, 2016, and going forward.

Klein believes that retroactive application of the standard could be unconstitutional.

Lawyers for the Legislature have already said the retroactive date isn’t a problem, but Klein said he’s heard from lawyers who worry it might expose the state to litigation.

Klein called Assistant Attorney General Bill Griffin to get a definitive answer.

“I described the reach-back date to the AG,” Klein said, “and what were some of the issues people thought about, and who might be harmed, and he said to me … ‘Well, obviously I’d have to see the language, but [looking] from a 30,000-foot viewpoint, that would put the warning lights on for potential issues.’”

Klein forwarded a copy of the bill to Griffin, who said he’d have an opinion on it today. If that opinion affirms the bill’s constitutionality, Klein said, his committee will agree to the version passed Wednesday by the Senate. A vote on the House floor (on its first pass through the House, representatives voted 142 to 0 in its favor) would presumably send the bill to the governor’s desk for his signature.

“If they come back and say, ‘We’re concerned about this retroactive date of April 15, and we believe you should make it upon passage, the effective date’ … we’d have to remove the April 15 date and the only way we could do that would be through a conference committee,” Klein said. “We are preparing for all eventualities.”

The April 15 deadline ensures that a wind project proposed in Swanton would have to comply with the new standards, Klein said.

Klein wrote the provision into the bill to please vocal critics of state renewable-energy policy, many of whom live near the site of the proposed project.

That project, he said, has been panned by both the Department of Public Service and Green Mountain Power.

“When you combine that with the fellow’s property where they’re going to put these — it’s just way too close to people’s houses, in my opinion — it was a project that clearly had some obstacles to it, and probably the least of the obstacles at that point was this bill,” Klein said. “My policy mind, and my fairness mind, don’t like what I did, but if it could calm a community down, and have the least impact on development, I’m OK; and the worst-case scenario is, a developer has to wait a year for a project.”

Opponents of existing state renewable-energy policy have touted the sound-standard provision as the best part of the bill; many of them oppose the rest of the bill, however, as they say it doesn’t give municipalities enough discretion over where developers and landowners choose to put projects.

“The state still has the last word,” said Rep. Marianna Gamache, R-Swanton. Towns and regions “still have to meet state goals, and the state can reject the regional plans. So what has changed?”

Renewable-energy proponents, however, worry that the provision will halt wind-turbine development in Vermont.

“Unfortunately, the targeting of wind power in the bill is going to have the consequence of chilling renewable-energy development in Vermont,” said Olivia Campbell Andersen, executive director of Renewable Energy Vermont.

Renewable-energy projects require a great deal of planning and investment before permits are even secured, Campbell Andersen said, “so it’s a de facto moratorium, because we won’t know now … what the rules will be for wind sound.

“It’s very unfriendly to business and investors,” she said.

Many Vermont towns appreciate the greater deference afforded by the bill to localities’ planning efforts, said Vermont League of Cities and Towns public policy and advocacy director Karen Horn.

Horn’s organization has pushed for the past several years for the “substantial deference” the bill grants to local and regional energy plans, and it’ll signal an important victory for local governments should the bill go into effect, she said.

“I’m not overly optimistic it’s the perfect solution, but it’s definitely a step in the right direction,” she said.

The House Natural Resources and Energy Committee will reconvene at 9 a.m. today.

Klein has formed a conference committee comprising himself, House Natural Resources and Energy vice chair Rep. Kesha Ram, D-Burlington, and Rep. Michael Hebert, R-Vernon, which will meet with the Senate to hash out differences over the bill.

Correction, 9:46 a.m., May 5: Klein spoke with Assistant Attorney General Bill Griffin, not Attorney General Bill Sorrell, as previously reported.


Source: https://vtdigger.org/2016/0...

MAY 5 2016
https://www.windaction.org/posts/44968-klein-retroactive-noise-standard-provision-may-be-unconstitutional
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