Published on May 15, 2006

MONTPELIER — The fate of a wind farm for East Mountain could hinge on a developer’s refusal to play ball with the state agency in charge of protecting the environment.

Final arguments on the project to erect four 330-foot towers on East Mountain’s summit in East Haven were heard last week before the Public Service Board (PSB).

East Haven Windfarm of Montpelier requested a final round of oral arguments after a hearing officer with the board made a preliminary recommendation in March that the project be scrapped.

Its request, however, may have darkened the skies. Or at least called in the clouds as the board heard the deputy general counsel with the Agency of Natural Resources (ANR) accuse the developer of refusing to work with it and address wildlife concerns.

“How is the agency able to fulfill its role if the developer refuses to go along,” asked Warren Coleman.

As early as 2003, according to Mr. Coleman, ANR asked the developer to conduct pre-construction studies and collect data on the patterns of migratory birds over the mountain. Such information, argued Mr. Coleman, represented “ a critical tool” in evaluating the impact of the wind farm on migratory birds as well as bats.

But the developer made no attempt to comply with the request, said Mr. Coleman, and consequently forced ANR into spending its own money on a radar study in an effort to get the information it wanted.

Windfarm attorney John Kassel, who once ran ANR as its secretary, argued that what goes on between birds and wind towers “is an evolving science.” And given the project’s small size, he said the information gathered from a one-year pre-construction study, with a price tag of roughly $25,000, would not be helpful.

“The risks would not be that great,” he said, adding that the key numbers would come in when the project is up and running.

The environment has been at the very heart of the East Mountain wind tower debate. And while expert study has focused on the fatality rate the blades will cause among migratory birds and bats, the debate itself has been played out in the much broader context — a context that asks the basic question: What represents the greatest good? The need to reduce reliance on fossil fuel by developing renewable energy sources like wind farms on ridge lines? Or the willingness to protect conserved land that is wild and untamed and offers people a chance to experience the raw majesty of nature?

Roughly two months ago, hearing officer Kurt Janson recommended against granting East Haven Windfarm a certificate of public good (CPG). He did so on mainly grounds that a wind farm would threaten or jeopardize a vast tract of timberland — a tract that includes the 133,000 acres of the former Champion lands — where millions of dollars in public funds have been invested in conservation and in preserving public access and traditional uses.

The final decision is in the hands of a two-member board that, according to one of its members, functions as a team. Normally composed of three members, the board is short-handed this time around because its chairman, James Volz, has recused himself, citing conflicts from his prior position with the Department of Public Service.

Before the two remaining members last week, Mr. Kassel tried to show how the hearing officer got it wrong by concluding the wind farm would be in “the center of a pristine wilderness.” Instead Mr. Kassel argued that the woods surrounding East Mountain are part of a working forest and provide the type of context where a wind farm would be appropriate.

In making his argument, Mr. Kassel suggested that those who argue against wind from a conservation point of view are like the motorists who display the bumper sticker: Vermont A State of Mind. It’s an admirable view but out of touch with reality, he said. And doesn’t help solve the energy problems facing the state.

The prevailing wisdom says that real Vermonters don’t make pets out of anything they eat. For Mr. Kassel, the hearing officer made much ado about the project’s cost and underestimated it benefits — a fundamental mistake. The project is expected to provide Lyndon Electric Department with 30 percent of its electricity, or what Mr. Kassel called “a big chunk of power.” It has also been touted as a demonstration model for what wind farms can do.

As the most persistent and most vocal opponent of the East Mountain project, the Kingdom Commons Group applauded the hearing officer’s recommendation when it first came out. They also participated in last week’s final round of arguments.

Burke’s Brian Kelly noted that the old working forest of Champion’s day is no longer today’s reality. A pulp and paper woods is being converted to a sawlog forest. Along with a change in ownership has come a change in the way the land is used. Conservation easements have been set in place with conditions to maintain and improve wildlife habitat.

He called the new working forest incompatible with a wind farm.

Kingdom Commons’ attorney, Dan Hershenson, reiterated testimony from landscape experts that characterized the surrounding lands of the proposed site — an abandoned Cold War radar base —as unique and special. He recalled the testimony of one expert who noted how intact the existing ridge line are.

And he argued that while wind farms have a future, they don’t belong on East Mountain.

The split among environmentalists was evident in conflicting testimony from the Conservation Law Foundation and the Nature Conservancy. The Nature Conservancy only submitted written objections to the project. Sandra Levine argued for the foundation however, that East Mountain was being held to a higher standard than other projects. She said it would be erroneous to conclude that the project should be rejected for its impact on scenery.

The Department of Public Service, which favors the project, took issue with the developer’s decommissioning plan that wants the scrap value of the towers to go toward the costs of the site’s clean up. Department attorney John Cotter argued that it would not be fair to burden ratepayers with the risk of paying for decommissioning.

When asked for its position on wildlife, Mr. Cotter told the board the department would defer to the Agency of Natural Resources.

That answer may have corrected a perception that the two state agencies at the hearing were at loggerheads over the project. What appeared evident during final arguments was that the department’s support was more muted, while ANR was more assertive in its opposition.

Mr. Coleman, ANR’s attorney, repeatedly said wildlife experts did not have enough information to evaluate the project. And given the lack of information, his agency had little choice but to oppose it.

Mr. Kassel again argued that there are sufficient studies to show that a four-tower wind farm will not have an adverse effect. He also warned that because of the uncertainty of the outcome, projects like this one may go begging when it comes to attracting investors.

The board, however, seemed troubled over the developer’s failure to do more studies. At one point, John Burke, who presided over the hearing, wondered why the company had not met its burden to prove there would be no adverse impact on migratory birds and bats.

Would you be happier, he asked Mr. Kassel, if the board put those conditions on your certificate of public good, and if the mortality is greater than anticipated, tell you: “Take it down.”

The East Mountain project is the first of two pending wind farms for the Northeast Kingdom. Also before the board is a 26-tower wind farms for ridge lines in Sheffield and Sutton. Developers also have approval for measurement towers in Brighton and Ferdinand.

Board members plan to visit sites on June 22 that will be affected by the East Mountain project. No decision will be coming until after the visit.