The Conservation Law Foundation says the governor’s action violates the constitutional separation of powers.
By Tux Turkel, Staff Writer
Portland Press Herald news story
A regional environmental advocacy group has gone to court in an attempt to overturn a moratorium that Gov. Paul LePage imposed last week on most new wind energy projects in Maine.
In a suit filed Tuesday in Cumberland County Superior Court, the Conservation Law Foundation charges that the governor’s action is unconstitutional because it violates the separation of powers. The Maine Legislature has passed laws for the permitting of wind energy, the group says in its complaint, and the governor can’t change that by executive order. The group is asking a judge to declare the ban unconstitutional and void the governor’s order.
“What the governor is trying to do here is veto existing law,” said Sean Mahoney, CFL’s executive vice president. “That’s not how our system of government works.”
The lawsuit doesn’t weigh in on a second element of LePage’s executive order, which would establish a special commission to study the economic impact of wind energy in the western mountains and coast. That study group could meet in secret and would be exempt from public access laws.
The legal action came a day after LePage introduced L.D. 1810, a bill aimed at halting the state’s decade-old permitting process that speeds up wind power development in certain areas of the state. Introducing legislation that can be debated in public is fine, the group suggests in its lawsuit. What’s not OK is an outright ban by executive order.
Maine’s so-called expedited wind law has made the state New England’s leader in wind development, with construction of 378 wind turbines and an investment of more than $1 billion.
But it also has been a source of anger and frustration for some rural residents who live near the projects and are subject to seeing and sometimes hearing the turbines and their massive, spinning blades. Critics gained a partial victory two years ago when 40 towns and plantations were removed from the expedited area.
ACTIONS CREATE UNCERTAINTY
LePage’s bill would essentially gut the existing law, in part by expanding from 8 to 40 miles the area around turbines that could be subject to visual impact studies. But it keeps parts of Aroostook County in the expedited area, because they are outside the mountain and coastal regions.
Taken together, the moratorium, Monday’s bill and Tuesday’s lawsuit create more uncertainty about the short-term future of wind power in Maine, which is seen by supporters as a key strategy to slowing climate change and fossil fuel dependency.
Jeremy Payne, executive director of the Maine Renewable Energy Association, said that widely circulated news of the moratorium and LePage’s bill can discourage wind development in Maine over a longer term. That’s because it can take up to five years to finance and build a wind farm. Investors and developers making decisions now about where to spend their time and money might go elsewhere, Payne said.
LEPAGE CITES THREAT TO TOURISM
Meanwhile, detractors who decry wind as a subsidized energy source that mars the state’s forested landscape said the lawsuit was anticipated.
“There’s nothing wrong with our governor being responsive to citizens concerned about the expansion of wind development,” said Richard McDonald, a leader of the Moosehead Region Futures Committee and the Saving Maine anti-wind group. “It’s time we know if wind development is hurting our economy. If this industry is so robust, a few months shouldn’t put it out of business. There’s very strong support for this timeout and the impact study in the Moosehead and Rangeley areas.”
Asked Tuesday about the lawsuit, LePage’s communications office said the governor doesn’t comment on pending litigation.
LePage has long opposed renewable energy in general, because he sees the associated tax credits and above-market power rates as subsidies that harm electric customers. More recently, he has contended – without evidence – that wind farms are a threat to Maine’s tourism industry.
Maine tourism has been growing in recent years, along with the recovered economy and relatively low gasoline prices.
Visitor statistics for 2017 won’t be released until spring. But last fall, the state’s tourism office said it was expecting another growth year, based on metrics such as the high number of travelers on the Maine Turnpike and visits to Acadia National Park. Overall, the tourism economy was worth $6 billion in 2016, according to the tourism office.
While scenery and visual impacts are obvious concerns for visitors, Chris Fogg, executive director of the Maine Tourism Association, said he’s not aware of any formal studies in Maine about wind farms and tourism impact. Fogg said his group has no position on the governor’s moratorium, but it supports the idea of forming a commission to study economic impact.
“As far as the moratorium is concerned, that’s for politicians to figure out,” he said.
SECRET PANEL TO STUDY IMPACTS
The governor’s executive order prohibits state agencies from issuing permits “related to wind turbines” in western and coastal Maine, on coastal islands and along “significant avian migratory pathways.” The moratorium would remain in place until a new Maine Wind Energy Advisory Commission – which will have meetings that are closed to the public and not subject to Maine’s Freedom of Access Act – reports on wind power’s economic impact and recommends potential regulatory changes.
“While out-of-state interests are eager to exploit our western mountains in order to serve their political agendas, we must act judiciously to protect our natural beauty,” LePage said last week in a prepared statement.
He ordered the moratorium one day before Massachusetts regulators announced the initial round of winners of a bidding competition to supply huge amounts of renewable energy to the Bay State. Several Maine-based wind projects were contenders, but none was selected. Instead, Massachusetts picked a new transmission project – Northern Pass – that will send Canadian hydropower through New Hampshire.
PUBLIC AWARENESS RAISED
That has a practical effect of reducing the chances of new wind farms springing up in the near future, because developers need firm power contracts to attract investors.
Chris O’Neil, a spokesman for Friends of Maine’s Mountains, said the outcome of the moratorium doesn’t really matter, because the recent actions already have served to raise public awareness.
Referring to Northern Pass, he said: “This breakthrough is significant, because it illustrates how futile an endeavor it is to pepper our mountains with underperforming wind turbines, when we can get so much more bang from the buck with scalable base load and peak load power.”