Published on March 16, 2005

MONTPELIER — To hear Matthew Rubin tell it, the ice thrown off a wind turbine blade is no big deal.

After all, he said at one point: “What’s the value of clean air?”

Mr. Rubin is the president of East Haven Windfarm. On Monday he was the lead-off witness as the East Mountain wind tower hearings got under way here before the Public Service Board (PSB).

The case is coming at a time when the future of wind power in the state is at a critical juncture. Windfarm is seeking a certificate of public good from the board to raise four, state-of-the-art, 329-foot towers on the summit of East Mountain in East Haven.

Mr. Rubin, the 64-year-old entrepreur of renewable energy, testified there is no need for a safety zone or buffer to protect trees and human beings alike against pieces of ice that could be hurled from the blades of the turbines.

Given the remote location of the towers, safety concerns or fears about damages from ice throws would hardly seem relevant, much less significant, to the outcome of a case that may set precedent for siting industrial wind farms on ridgelines.

But it is precisely the location of towers on East Mountain that opponents of the project hope to exploit in convincing the board that the summit of East Mountain in cash-poor, ruggedly scenic Essex County is no place to site a wind farm.

For one thing there’s the remote character — some say wilderness — of the area, and the question of whether massive towers, with turbines capable of generating 1.5 megawatts of power apiece, would fit in such a setting.

And fit, in these proceedings, is a very big deal. It is the lead criteria in what is called the Quechee test — the test traditionally used by landscape architects to determine if a project is aesthetically acceptable.

Then there’s the neighbors.

East Mountain is bordered by the former Champion lands, now owned by Essex Timber, and encumbered with conservation and public access easements. If the board determines a safety zone is required to protect both nature and people from ice throws, evidence suggests that a zone would have to extend onto the lands encumbered by the easements. Such a requirement could be fatal.

Recently the holders of the easement said it would be up to the Legislature to determine if the easements could be opened up to allow the extension of a safety zone. It would be impossible, given the legal and aesthetics reasons, to overstate the significance of Champion on the proceeding.

Controversy and debate over siting towers in the Northeast Kingdom — the jewel in many a conservationist’s eye — has caused a split within the environmental community, chiefly between those who participated in the Champion deal, like The Nature Conservancy, and those who didn’t, like the Vermont Public Interest Research Group, commonly known as VPIRG.

Ironically, in an arena where developers have historically squared off against environmentalists, the applicants this time around are not so neatly divided. Both Mr. Rubin and East Haven Windfarm’s vice president, David Rapaport, sit on VPIRG’s board. Windfarm’s lead attorney, John Kassel, was Secretary of the Agency of Natural Resources (ANR) when the big Champion land deal was signed.

In a case that has as many twists as a river road, ANR, while not coming out openly either for or against the project, has provided testimony to the board from wildlife biologists that raises concerns over the threat presented by towers’ rotating blades to bats and migratory birds, as well as the project’s impact on the natural beauty of an area where public money has been invested.

Moreover, those who have been following the case say that Mr. Kassel will have to attack and impinge the credibility and integrity of those biologists who once worked with and for him in the agency. If, that is, East Haven Windfarm is to prevail.

The hearings are scheduled to run the entire week, and resume again on the week of March 28. Testimony the first two days focused on the impact the project may have on the area’s character and the mountain’s wildlife.

Peter Owens is a landscape architect from Hanover, New Hampshire, who concluded that the four towers would not have an undue adverse effect on aesthetics. He reached his conclusion by deviating from the Quechee test and by adding a new standard. On the stand, he said because the Vermont landscape has never seen anything on the scale of the towers, a different standard was required.

At first, he said, introducing something as unprecedented as wind towers into the Northeast Kingdom was like introducing a green person into “a bunch of blue people.” In order to make an evaluation, he added, the project has to be viewed from a larger context. Otherwise, he concluded, there would be no fit place to site them.

Mr. Owens went on to testify that “a landscape is a dynamic and evolving thing,” and that aesthetics cannot be separated from values.

For example, he said that if the farm silos that dot the countryside contained intercontinental missiles rather than chopped fodder, people would feel differently about them.

Besides, he added, that is what happened with the towers at Searsburg, the site of Vermont first wind farm. In a before and after survey, people in the area said they liked the tower better than they thought they would before the project was built.

Mr. Owens’s reliance on a larger context to determine a project’s fit, brought him under some blistering cross-examination by the attorney representing the Kingdom Common Group — the group who opposes putting wind farms on Vermont’s ridgelines. Early in his cross-examination, attorney Daniel Hershenson played the Champion card.

“What do you understand the permitted uses of the Champion lands to be,” he asked.

Mr. Owens replied that he regarded the neighboring land as a privately owned tract where logging is permitted and where conservation easements are in place to prevent any development.

But Mr. Hershenson pushed him a little further. Given the recreational uses permitted by the easements, he asked, “Would that fall into an area where this project belongs?”

“Absolutely not,” replied the architect, who went on to reiterate his belief that logging and generating electricity from wind are compatible uses in a working forest.

The towers would fit in a region that “harvests and extracts natural resources from the land,” he said.

Attorney Hershenson suggested to the board that Mr. Owens had to invent a new criteria because the project would not pass muster solely under the Quechee test.

Other landscape architects, who reached the same conclusion as Mr. Owens but relied solely on the Quechee test, are expected to testify in the case. Mr. Owens may already have hit a nerve within the profession.

Mark Kane, who analyzed the aesthetic impact on behalf of the Department of Public Service, the public’s advocate in these matters, has asked the board not to stray from the Quechee test when it comes time to make a decision.

In pre-filed testimony, Mr. Kane “recommended that the board reject the testimony of Mr. Owens where he suggests that the Quechee analysis should not apply to commercial wind farm developments on Vermont ridgelines.”

On Tuesday the testimony shifted from aesthetics to bats and birds. Prior to the hearing, testimony filed with the board suggests that little is known about the impact wind towers will have on migratory birds and bats. Consequently, a tug of war among experts has evolved in this case, with cries of foul being raised over the methodology used in counting birds on East Mountain, and over conclusions being offered on an insufficient basis.

“Get a roomful of experts, and you get a lot of disagreement,” testified Dr. Paul Kerlinger, who conducted an avian study for the Windfarm, and concluded that the towers would have “no significant biological impact” on East Mountain’s bird population.

But before the board Tuesday, ANR attorney Catherine Gjessing suggested that the expert’s conclusions may be premature. She asked if his risk assessment methodology on East Mountain had been reviewed by his peers in the scientific community.

“I think the proof is in the pudding,” he said, before adding: “I’m not sure it’s been peer reviewed. I have not had it peer reviewed.”

Much of the criticism over Dr. Kerlinger’s conclusion stems from fears among other biologists that the studies are incomplete and need to be expanded.

On the stand Monday, however, Mr. Rubin defended his expert’s conclusion, and brushed aside complaints that his company did not go along with a recommendation from U.S. Fish and Wildlife to conduct a three-year pre-construction study.

“We didn’t believe it would result in any information that would be probative in this case,” he said.

Experts for Windfarm also testified Tuesday that a radar study to assess the threat to migratory birds at the site was seriously flawed. Commissioned by ANR and The Nature Conservancy, the study found that over 67 percent of all birds flying over the mountain were “within the rotor sweep area in which the wind turbines would operate.” Their findings exasperated Dr. Kerlinger.

“I’ve been scratching my head ever since I read that the first time,” he said from the stand Tuesday.

His misgivings were given further weight by testimony from two witnesses who also do bird studies using radar. Testifying together as a team for Windfarm, Robert Roy and Steve Pelletier said they have problems with the methodology used by the radar company hired by ANR and the Conservancy. The team said they “questioned the validity of the work.”

As run by PSB, the hearings are highly technical with lawyers asking questions from pre-filed testimony in the case. Upon taking the stand, witnesses are immediately questioned or cross-examined on the basis of testimony already offered in writing. Still, passions aroused by the project occasionally percolate to the surface as they did Tuesday in a question from Newark citizen John Day.

Mr. Day, who has party status in the proceeding as a property owner whose view will be affected by the towers, wanted to know if Dr. Kerlinger had ever done research for groups opposed to wind turbines.

After the lawyer’s objection had been overruled, the witness answered the question.

“Generally,” replied Dr. Kerlinger, “I don’t get paid by objectors to wind power projects.”