Published on July 19, 2006

MONTPELIER — This week’s decision by the Public Service Board (PSB) to reject a wind farm for East Mountain may have far-reaching implications for wind developers.

Rather than side with prevailing arguments that a wind farm on the East Haven mountain in the middle of the Champion lands would not be consistent with a $40-million public investment in conservation or compatible with regional growth, the board told the Montpelier-based company, EMDC, that it had failed to do its homework.

In proposing to site four 329-foot wind towers on the mountain’s summit, EMDC had argued that any adverse impact on bats and migratory bird would be insignificant.

But that opinion may have struck the board as arrogant.

“Size alone does not provide enough evidence that it would have undue adverse impact on resident and migratory birds and bats,” the board wrote in a 16-page ruling released Monday.

“We cannot sufficiently gauge those impacts without the site-specific studies that EMDC has elected not to supply.”

And with that conclusion, the board rejected EMDC’s petition for a certificate of public good (CPG).

The board’s rationale closely mirrored the objections that were raised continually by Agency of Natural Resources (ANR) through a long bout of hearings beginning in the winter of 2005. The agency, which financed an avian radar study on its own when EMDC concluded that more studies were not needed, opposed the project in the face of insufficient data.

ANR’s lead counsel in the case, Warren Coleman, said Tuesday that the ruling appeared “to defer to our expertise.”

“It didn’t seem like they second-guessed us,” he said, speaking of a three-member board that had to act without its Chairman James Volz, who recused himself earlier from the case because of a conflict.

“If there were any doubts before that it was something that was going to be required, there’s no doubts now,” said Mr. Coleman, speaking of studies on bats and migratory birds along ridge lines of interest to wind developers.

Reaction to the decision within the wind industry has been muted. David Rapaport, a vice-president with EMCD, the parent company of East Haven Wind Farm, did not return a call Tuesday, and an e-mail the same day to Renewable Energy of Vermont went unanswered.

For some, though, there was a silver lining in the decision as it gives developers a more rounded idea of what the board will require of them.

Rob Roy Macgregor of Fairwind Vermont called the decision “a wake-up call for any other developers who are still in the hunt at this point.”

Still, he said, the board could have granted a CPG and “laden it with conditions” that in the long run could have provided both the board and developers with some sound science on bats and migratory birds.

Without any hard evidence, he said, wind projects like the one proposed for Sheffield and Sutton will be “thrown back into the realm of speculation.”

As proposed by EMDC, the four towers on East Mountain were intended to be a demonstration project, a strategy that EMDC seized on after its initial proposal to erect 50 towers along Essex County ridge lines, including some on the Champion lands, got a cold shoulder from the Legislature.

The conservation easements on the Champion lands provoked controversy throughout the state that shadowed the East Mountain project from its inception.

Perhaps ironically, however, the two-member board overruled a long and studied recommendation from its hearing officer in March that the project be rejected because of its proximity to the Champion lands.

In his recommendation, the hearing officer, Kurt Janson, found that the towers would “detract significantly from the recreation experience and, more generally, would be fundamentally incompatible with remote, rugged, undeveloped nature of the conserved lands that surround the project’s site.”

The board, however, found that Mr. Janson had erred in his conclusion by giving more weight to the project’s impact than its benefits.

“Our consideration of a project’s impact on aesthetics and scenic or natural beauty must be ‘significantly informed by overall societal benefits of the project,’” it said in its ruling.

When it came to benefits versus impact the board agreed the positions taken by the Department of Public Service, wind developers, and environmental groups like the Conservation Law Foundation that supported the project.

“Our review of the record leads us to conclude that the benefits of this renewable energy project are somewhat greater, and its impact on the public investment less that the Hearing Officer determined,” says the ruling.

“Accordingly, when we balance those benefits and impacts, we conclude that the benefits are sufficient to outweigh the impacts on the public investment in the Champion Lands.”

The board also took pains to assure investors and developers that its decision should not “be read as a rejection of siting wind towers on any Vermont ridgelines.”

And as Mr. Macgregor pointed out Tuesday, EMDC still has the option of going back and doing the avian studies at East Mountain, and resubmit its petition for a CPG.

Along that vein, the board concurred with the hearing officer’s recommendation of a one-year preconstruction study, followed by a three-year post construction study on mortality rates for bats to determine the project’s impact.

EMDC, which has test towers on three other Essex County ridge lines, has 30 days to appeal the board’s decision to the Supreme Court. Mr. Macgregor said it might be wiser for the company to spend its money on avian studies than try to get the decision reversed by the high court.

Meanwhile, Mr. Coleman over at ANR said Tuesday that UPC of Vermont, the company behind the Sheffield project, is going along with the agency’s requests concerning studies.

“They’re doing their homework,” he said.

By not doing the studies, EMDC appears to have gambled and lost.

Without sufficient data, the board noted, “we are unable to find that EMDC’s proposed wind turbines would not have an undue adverse impact on bats.”