by Dylan Voorhees, NRCM Clean Energy Project Director
Senator Thibodeau and Representative Fitts,
Thank you for the opportunity to comment on these related pieces of legislation. We have consolidated our testimony on all of today’s bills (and will submit additional consolidated testimony on the remaining bills at tomorrow’s public hearing.) Because these bills deal with overlapping and related issues, we are presenting some overall comments that may be of use to the committee, as well as some limited specific comments on individual bills—including NRCM’s position on each bill.
It is a simple truth that what one does with one’s land can affect public and private values nearby and even across the state. This is the basic reason for zoning and land use laws, which NRCM obviously believes can be important tools for protecting public values. However it is unfathomable to us that Maine would adopt laws that would require a developer to compensate all of their neighbors for real or supposed losses. If this principle were applied more broadly to development of other kinds—and we see no reason why it should apply to wind power and not other forms of generation or development—then it would grind many forms of development to a standstill. Think about your own land or your own community. Perhaps you would like to extract a payment from the strip mall or Burger King or hog farm or prison that just moved into town because you believe they will negative affect you. But you surely recognize that we could not function in an environment where calculating any negative impact and paying full compensation was required. Wind farms can have an array of positive and negative affects, including in local communities. (There is no good statistical evidence they reduce property values.) Maine’s focus should be on appropriate standards to protect natural resources and the public from undue harms through existing, traditional mechanisms such as zoning and permitting.
NRCM supports the existing provision in law that requires wind development to provide tangible benefits to Maine communities. Other forms of development in Maine, including other power plants, are not required to provide “tangible benefits”. However we support this approach for wind power because it reflects the fact that the benefits of wind power are often spread broadly—jobs, economic activity and environmental/pollution benefits—while impacts may be localized. Wind developers are typically supportive of providing direct community benefits, and the existing tangible benefits law was developed to provide developers, communities and permitting agencies with predictable, measurable standards for minimum benefits.
This bill would take this idea in a totally different direction which we believe is unworkable and unwarranted. First, the bill describes in a only a few words what would be an incredibly complex, if even possible, effort to objectively measure “losses” to business or property resulting from a wind farm. We believe this would end up being speculative and subjective and a burden on the regulatory process. Second, it does not allow for “gains” to businesses or property to be counted, only “payments”. That is unfairly one-sided. Wind power provides many benefits, including reducing pollution to stimulating jobs. The tangible benefits law does not focus on or attempt to quantify standards for all of them, but establishes a mechanism to help local communities. It is not perfect, but the approach in this bill would be highly problematic.
NRCM does not have a specific position or technical expertise regarding siting the smaller wind turbines that are likely to be located in residential developments. However we note, as described above, that this bill singles out and subjects to regulation wind power noise rather than any other potential source of noise in a residential setting. We aren’t aware of a good reason to do this. Household gasoline-powered generators, for example, are much louder—and more polluting—than a wind turbine, but would remain unregulated under this section. While we are well aware of concerns about noise impacts from utility-scale wind turbines, we are not aware of concerns or conflicts arising from small wind turbines (which are increasingly governed by local ordinances).
NRCM believes that it is essential for Maine to have an appropriate and rigorous evaluation of the impact of wind power projects on important scenic resources in Maine. This is challenging to do in practice. (We know, because we have struggled with this ourselves on many specific projects.) As Maine began to assess modern wind power projects around 2005 it became clear to many stakeholders that the legal standard that required projects to “fit harmoniously in the landscape” was very difficult to apply in a consistent, predictable fashion. Whatever one thinks about wind power, we should agree that permitting standards should be consistently and predictably applied. A great deal of time was spent by the Governor’s Task Force on Wind Power on exactly this issue, and many options were discussed. In its final report, the group concluded about the “fits harmoniously” visual standard:
The Task Force proposed, and the legislature adopted, a standard that was protective of the state’s most important scenic resources, and provided additional statutory guidance for agencies about how to consider visual impacts of highly visible wind projects. The revised standard was one of the essential elements of the designation of Maine’s expedited review area, therefore helping to direct wind development toward more preferred areas of the state.
This revised standard is not perfect, and we have learned some important lessons through its initial implementation. (One lesson is that is impossible to have a visual standard that does not involve some measure of judgment.) Rather than reciting those lessons and NRCM’s suggestions for possible amendments, we suggest this is an area that is ripe for review by stakeholders and the OEIS in 2012, along with other aspects of the Wind Power Law. One thing is clear: it would be a mistake to repealing this standard and returning to a single standard that was demonstrated to be difficult to apply in a consistent fashion.
There are numerous aspects to this bill. Some we believe may be constructive, others we strongly oppose. As described in our general comments, we believe the appropriate way to address some of the complex issues regarding wind development standards would be through a more in-depth assessment, with significant stakeholder consultation, in the coming year.
The specific element that we find appealing in this bill is the requirement that permitting agencies consider cumulative impacts from wind development. We agree that certain impacts may pass muster on an individual project basis, but lead to an unacceptable impact, for example at a regional level, when considered along with other projects. Addressing this policy challenge is very difficult. We would like to participate in a larger conversation with others in how to address this challenge, and believe rulemaking may be the appropriate eventual outcome.
Other aspects of this bill are very problematic. Most notable is the requirement that wind turbines be less than 75 ft tall when located over 1000 ft in elevation. This would completely halt commercial wind development in the state. If you passed such a standard, you wouldn’t need to worry about setbacks, noise or tangible benefits—you just wouldn’t have wind energy development.
Regarding the mandate that every wind project undergo an adjuratory proceeding, we are not aware of any similar requirement that an agency must go through a rather intensive process for every instance of one form of development. DEP and LURC can use such a process—and LURC typically does use this process.
In concept we support having a specific rule for decommissioning, although our understanding is that in practice Maine’s agencies have been applying a relatively consistent approach.
The bill proposes some additional review by Inland Fisheries & Wildlife that is unclear to us. However we believe agency review is a very important component of natural resource permitting. Therefore we note here that we are concerned that the Administration appears to have halted review of wind power projects by the Bureau of Parks and Lands. This agency is the expert on our public lands, which may be impacted by wind power projects (or conversely, may be the appropriate party to participate in land conservation that might happen as a “tangible benefit”.) We would support some modest statutory language that encouraged the agency to be again be a participant, by providing data and perspective to LURC or DEP, much as IFW or the Historic Preservation Commission or others do.
The parts of this bill that appear to make fundamental new changes to Maine law appear to focus primarily on two issues: physical setbacks and decommissioning requirements. Wind turbines can cause impacts and conflicts with neighbors that must be regulated. This is especially true of noise. In general we are not persuaded that most of these forms of impact are particularly different for wind power than for other forms of development, and thus they are best dealt with by more generic rules and standards, based on sound evidence, that will protect the public from undue adverse impacts. (Visual impacts, which is not addressed in this bill, is one area where wind turbines pose unique characteristics and justifies a unique standard.) Physical safety can be assured for any tall structure by ensuring that the structure is located further away from property lines than its height (perhaps 1.5 or 2 times the height). Noise standards are very important—but the best way to protect the public is through an actual noise standard, not an arbitrary physical distance that applies to only one form of development. We appreciate that conservation lands are included in the proposed setbacks, but we don’t see a reason for an arbitrary setback. If a recreational resource or public land is not adversely visually impacted and noise standards will be met (both of which have important, specific standards in law), then why require a setback? Based on some similar GIS mapping that we have done, a flat setback of 2 miles from any park, wilderness area or public land would likely exclude a huge amount of Maine’s remaining developable wind resources (noting that much of it is already outside of the expedited area or on conserved lands.)
NRCM supports having a clear rule for decommissioning. We believe there can be a workable approach that provides public protection at the end of the life of a wind farm while not unduly burdening wind generation, which is of course a cost that would be passed onto energy consumers. (Perhaps the committee should consider a decommissioning rule that would apply equally to all power plants if the committee seeks to minimize market distortion and forms of subsidies.) If you imagine that decommissioning costs might be similar to construction costs, requiring developers to pay that full amount twice, up front, seems inappropriate. That is what the bill would require.
We do specifically support one provision of the bill, the requirement that wind projects use the minimum amount of lighting allowable by the Federal Aviation Administration.
Aside from any questions about DEP’s capacity to undertake additional enforcement duties within existing resources, we don’t have a position on this bill. For the committee’s information, current law requires that the DEP
This legislation is an attack on the recognition in law that wind power, like other forms of renewable energy, provides certain environmental benefits. There is a mountain of evidence that wind generation, along with other renewables, displaces generation that would otherwise come from fossil fuels, thus providing significant pollution reduction benefits. We would be happy to provide some of the studies and reports on this subject, if it was the pleasure of the committee. For today’s purposes, we simply refer to the recent, comprehensive report by ISO-NE, the
Maine’s permitting agencies, especially the Land Use Regulation Commission, are not and never will be experts in electricity grid operations. This bill would move us back to a time, which would be as unworkable now as then, when Commissioners would need to evaluate complex technical evidence about grid operations, marginal emission rates, and the like, which are not fundamentally important for determining whether or not a project is well sited and will not unduly harm natural resources. Re-litigating these issues for each project will unnecessarily tangle up the regulatory process.
Please also note that Section 1 of the bill proposes changes to standards for PUC approval of transmission lines, but this section of statute explicitly does not apply to “generator lead lines” which are the portion of transmission lines immediately associated with wind power facilities.
The committee is well aware that Maine has a deregulated energy market. NRCM does not have a specific overall position on continuing with deregulation. As the committee is well aware, it has advantages and disadvantages. (We believe the deregulated market alone will not move Maine toward a sustainable, diverse, efficient and affordable energy mix—hence the need for policies such as the Renewable Portfolio Standard, Efficiency Maine and RGGI, which are based on specific policy goals, such as diversification with all renewables.) We strongly oppose Section 1 of the bill which singles out a single renewable technology for a standard of costs and price impacts. Requiring wind developers to sell their electricity below market prices is an unfair burden that will only sustain our overdependence on fossil fuels. Maine does not require our potato farms to guarantee cheaper potatoes or papermakers to lower the cost of paper. Why would this standard not apply to all proposed generators? If it should, then you have simply taken the leap back to a regulated market.
We also believe that basing Maine’s energy policies and regulatory decisions solely on electricity price or cost impacts is inappropriate. The price of energy does not take into account many “external” costs, including pollution or the sustainability of energy sources, which must be considered for the health and benefit of Maine now and over the long term. While the evidence suggests that wind power generally is in the
While we would undoubtedly find the proposed monthly reports fascinating reading, it is not clear what their specific purpose is, or why existing information sources on generation and emissions are not sufficient. We like transparency. We wish that Maine’s energy consumers had greater access to information about the sources of their electricity and the full range of their impacts—including the broader impacts and those outside of Maine that occur as a result of our energy choices. We would be happy to work with the sponsor on such an approach.
Finally, while we understand the appeal of determining whether a proposed power plant will raise or lower prices, doing so is so complex as to make it nearly impossible. Assumptions about future fuel costs will be by far the largest driver of that analysis, and if we could predict that we’d all be rich. In many ways, stabilizing prices and mitigating future increases is a more reasonable goal – and for that one of our chief strategies should be investing in renewable generation that has no variable fuel costs.