State’s highest court hears Antrim Wind appeal arguments

Oral arguments for an appeal against the approval of a wind project in Antrim were heard in the state’s Supreme Court on Thursday morning.

The appeal, which has 11 individual appellants and two groups listed, was lodged after the state’s Site Evaluation Committee ruled in late 2016 to approve a nine-turbine wind project proposal slated to be built along Tuttle Hill and Willard Mountain.

An iteration of a similar wind-energy project was proposed back in 2009, although the SEC, which was made up of different members at the time, struck the proposal down. Antrim Wind Energy, whose parent company is Walden Green Energy, amended the project by taking away one of its turbines altogether and lowering another one to reduce visual impacts. The company then started the approval process again, and this time, was successful.

Eric Maher, an attorney representing the appellants, argued in the state’s highest court on Thursday that the SEC shouldn’t have approved the amended project.

“It cannot be that a change in the subcommittee can be enough for a certificate to grant,” Maher said during the proceeding. “And it cannot be that these applications should be considered, requiring members of the public who have no means of recourse for costs associated with this, to continue defending their safety, property values and their scenic views, which they have paid for.”

Bill Glahn, an attorney representing the wind company, said in court that the SEC was assessing a totally different project the second time around, underlining amendments the energy company made to its second project like eliminating one of its turbines and lowering a second.

“They were dealing with a completely different project,” Glahn said during the proceeding in defense of the SEC’s approval. 

Maher made many other points throughout the court proceeding, including that there’s no evidence regarding how the radar-activated lighting would work, how it would be triggered, and how long it would be triggered for. He said he believes all “are important considerations to which there was no evidence presented.”

Maher said it appears the SEC signed off on the radar-activated lighting because the Federal Aviation Administration OK’ed the project. The fault with that, he said, is the FAA only measures plane safety, not aesthetic impacts.

Maher also raised concerns over the energy company’s “vague assertions” about how it will reduce decibel levels, and shadow flicker.

A judge interjected that there would be regulatory oversight of the project. If the shadow flicker wasn’t meeting the standards laid out by the SEC that “your client wouldn’t be left without remedy,” the judge said.

“There would be a proceeding they could initiate to say, ‘wait a minute you said you were going to do this, you didn't do it. Do it,’” the judge said.

Maher shot back the 500-foot turbines that will be erected on the 1,400 to 1,900-foot ridge will be permanent fixtures, and the “damage is done at that point.”

“Once these things are constructed, they are constructed,” Maher said.

Glahn said all of the points the appellants made during the court proceeding on Thursday were addressed during the SEC during the decision-making process.

Glahn said the appellants are arguing that there’s a lack of evidence when what they really mean is that they don’t like the evidence that’s been presented.  

“Contrary to what Mr. Maher says, they are saying we don't like the evidence that’s in the record. Not that there wasn’t evidence. There was plenty of evidence in the experts report and the expert’s testimony,” Glahn said.

As an example, shadow flicker, he said the company is tasked with submitting semi-annual reports to demonstrate that it is complying with parameters set out by the SEC regarding the topic.

If the company isn’t following the rules, Glahn said the project would be shut down.

Carole Alfano, a communications manager for the Supreme Court, said it will likely take three to six months for the court to issue an opinion in the case. The opinion will be posted online when it’s made public.