Published on April 13, 2005

MONTPELIER — What does an abandoned fire tower on a mountaintop have to do with a wind turbine?

Everything, to hear John Kassel, an attorney for East Haven Windfarm, tell it.

“They’re historic, and they characterize the remoteness of a landscape because they represent the way in which a landscape was used at a particular time?” he asked.

The attorney was directing his question to state wildlife biologist Tom Decker, one of the last witnesses to testify before the Public Service Board (PSB) on the controversial proposal to erect four wind turbines on East Mountain.

In turning his statement into a question, the way attorneys sometimes do, Mr. Kassel was referring to the network of fire towers in the Northeast Kingdom that were erected in an earlier century by timber barons anxious to protect their property — vast tracts of timberland in a sparsely inhabited region.

Mr. Decker, who is with the Department of Fish and Wildlife, allowed that fire towers are cultural examples of how a landscape changes over time.

“And would you not agree that the landscape is going to change into the future?” the attorney continued.

“Hopefully in a planned way. Yes,” replied the witness.

Q. “Mr. Decker, isn’t it possible that wind turbines in certain locations can become the sort of structures that characterize the remoteness of a landscape?”

A. "Is that possible?”

Q. “Yes.”

A. “I believe that could be possible. In certain locations where they don’t conflict with other values."

Q. “And where they are determined to be necessary or appropriate, perhaps in the same way that fire towers were once determined to be necessary and appropriate?"

“Certainly,” replied Mr. Decker, whose prefiled testimony argued that wind turbines would be incompatible with a surrounding landscape where over $40-million in public funds have been invested to conserve and protect its wild and rugged beauty.

Today only a few fire towers remain. Time has passed them by. Most are in disrepair; all are obsolete. And while some would take issue with drawing an analogy between a wooden fire tower that is self-destructible and one made of steel standing 329 feet in the air that would need to be taken down, if and when it passed into obsolescence, Mr. Kassel may have hit the nail on the head when making the oddball comparison

The question pending before the board is: Are the turbines, like the fire towers, necessary and appropriate? Or are they, as Mr. Decker suggested, in conflict with other values?

For 13 days those questions have been at the core of an acrimonious dispute between wind developer Matt Rubin and members of the Kingdom Commons Group (KCG) — a group which opposes putting wind farms on ridgelines. (The two sides are so polarized over the issue that when Mr. Rubin brought a wind tower model into the hearing and set it on the table, complaints that it was obstructing the view eventually caused it to disappear entirely.)

Starting in mid-March and stretching into the first week of April, the hearings featured roughly 30 witnesses. Expert testimony came from biologists, meteorologists, engineers both environmental and mechanical, professors, landscape architects, planners as well as regulators with the Agency of Natural Resources, and planners with the Department of Public Service.

Also on hand to testify were people like George Willy of East Burke and Will Staats of Victory, who as guides and woodsmen have first-hand experience with East Mountain. In fact, Mr. Willy’s turn on the stand produced one of the more light-hearted exchanges during the hearings.

Attorney Andy Raubvogel, who filled the second chair of Mr. Rubin’s legal team, probed the witness’ knowledge of bears.

“Bears don’t like to be near humans?” he asked.

“Unless they’re hungry,” replied Mr. Willy.

When transcribed, one day’s testimony added up to 286 pages.

Still pending is a motion to throw out the developer’s petition for a certificate of public good, which surfaced just before the hearings got under way on March 14. Also there is a motion from Windfarm to put on one more witness, an engineer, whose prefiled testimony missed the deadline. And both sides are still working independently — with a stipulation to share any information each may uncover — to determine how big a problem an asbestos cleanup will be at the site. There are few, if any, predictions when a ruling will be handed down in the case.

Testimony appeared to end Friday, April 8, with Rob Ide of Peacham on the stand. A former senator from Caledonia County, Mr. Ide resigned his seat in the Legislature in 2003 to take up the post he presently holds in the Department of Public Service (DPS) as its director of energy efficiency. In testimony filed earlier in December, the department, which is considered the public’s watchdog in energy cases, came out in favor of the East Mountain project.

Its support, however, was limited to the four-turbine petition put forward by the developer. Moreover, it left dangling the issue of whether the board will consider the project’s cumulative effect.

The proposal has been characterized by Mr. Rubin as a “demonstration project,” and recently he has petitioned the board to erect three test towers on ridgelines in the towns of Brighton and Ferdinand. Those developments have not gone unnoticed, even though they did not surface as issues in the hearing.

Here is Mr. Ide in his prefiled testimony offering a recommendation to the board over how it should regard the project’s cumulative effects:

“In the event there are any future proposals to either expand the current project or to develop new projects in the vicinity of the East Mountain project, the board should preserve its ability to consider the cumulative effect of multiple wind generation sites within any single view shed. Although this is the first project in this area, it may prove appropriate for future projects to be viewed with consideration of the total number of turbines within a view shed, as well as the proximity of the nearest turbines to any sensitive viewing location.”

In the absence of any discussion or argument before the board, it is difficult to determine how much weight, if any, will be given to cumulative effect.

To witnesses like Cathy Sargent, an activist with Kingdom Commons, the subject of cumulative effect seemed to be out of bounds.

“It was something we learned very early on that it was impossible to talk about,” she said this week in an interview. Yet she wasn’t bashful on the stand when the opportunity presented itself.

“You believe these four turbines are going to lead to many more turbines, don’t you?” asked John Kassel, Windfarm’s lead attorney.

“You oppose it because you don’t think the board would not be able to say no to the next project?”

Hearing Officer Kurt Janson asked her to compare the project to the wind farm at Searsburg.

Ms. Sargent replied there was no comparison. “It’s complete blackness up there. I think it would spoil something we’ve tried to protect.” And such a prospect, she added, “absolutely terrifies me.”

During the hearing, the DPS did not appear anxious to push the point. When asked about the cumulative effect last week, Mr. Ide replied that it was impossible in his mind “to judge the project on what might happen in the future.”

Nevertheless, he added, “We do take the cumulative effect very seriously.”

In taking what may be considered the middle ground, the department — in the mind of the opponents — has failed to live to its role as public advocate. Last week Mr. Ide had to face the brunt of their anger, along with allegations that the department has enjoyed a much too cozy relationship with wind developers.

The attack was led by KCG activist Vernon Gray, a retired teacher whose home in West Burke faces East Mountain. Through his interrogation of Mr. Ide, he established that DPS used $100,000 in federal grant money, obtained by Senator Jim Jeffords, to pay for the installation of two test towers on Lowell Mountain; that DPS steered $77,000 from the same federal grant to Renewable Energy Vermont, a small organization whose board members include both Mr. Rubin and the developer who wants to put a wind farm on Hardscrabble Mountain; and that the Jeffords’ grant that DPS sought was called, “Overcoming Barriers to Wind Development.”

Mr. Ide said he had inherited the funding decisions when he took over the job. Since then, he testified, DPS’s policies had changed so it would be impossible for federal grant money to fund, for example, the three test towers Mr. Rubin wants to erect on Kingdom ridgelines. The attack also took a personal turn: How would Mr. Ide feel if the towers were in his backyard?

Mr. Ide said he had considered that possibility as he sat on his front porch and gazed at the ridgelines on Harvey Mountain and Blue Mountain. A proposal to place four towers on their summits would not upset him, he said.

But that wasn’t always the case.

“I’m surprised by my own attitude toward wind towers,” he said, noting the books he has read and the places he has visited.

Included in Mr. Ide’s testimony last week was a recommendation that the board tighten the reins on a decommission fund — a fund that would come into play in the event that Windfarm went bankrupt and the turbines became idle. He said DPS was unhappy with the lack of detail in the developer’s plan, and recommended the fund be activated after the plant produced no electricity in a year’s time.

The board has authority to attach conditions to the project, and in light of the conflicting testimony among experts, the list of conditions could be lengthy if the project is approved.

As far as the project’s impact goes, experts disagreed about everything from bats to voles; from ice throws to the effect of cold weather on capacity; from the impact on emissions from conventional power plants and whether they would be displaced — only to reappear somewhere else — or avoided altogether. Even the impact on something as familiar to Vermonters as black bears caused discord among the professionals.

The most outspoken wildlife critic of the project was a biology professor from the University of Vermont who is also the curator of vertebrates at the Zadock Thompson Natural History Collection at the university. In prefiled testimony, Dr. William Kilpatrick said the turbines would have an adverse effect on large mammals such as bears and bobcats. He based his comments on a field study he did at East Mountain for Kingdom Commons.

From the stand last week, Dr. Kilpatrick said he disagreed with state biologists’ assumptions that a bear’s den does not constitute habitat. Earlier testimony from state biologist John Austin, who is with the Department of Fish and Game, suggested that when it comes to denning, bears are ubiquitous, willing to den anywhere they find hollow logs or uprooted trees.

Dr. Kilpatrick attributed those remarks to the politics of a department policy that he said had no influence on him. “I’m not under any obligation to restrain my opinion.”

Because female bears give birth during hibernation, they look for dens in secluded spots. And because of its remote and rugged terrain, the professor testified, East Mountain is one of those ideal spots.

While all bears shun company, the female bear seeks a den that will protect her and her newborns from predators. One of the major predators is the male bear, who will eat the new cubs. According to Dr. Kilpatrick’s testimony, the noise of the turbines will drive bears away from East Mountain. Consequently, he said, there will be less secluded spots to hibernate, and as winter interaction increases between males and sows, the bear mortality rate will climb.

The professor estimated that the project’s noise and ice throws will cause bears within 1,000 acres to abandon the area. Subtract those two factors, he added, and the impact would be cut down to 40 or 50 acres.

Given the range in opinions, it would appear unlikely that the project’s impact on wildlife will rise to the level of a show stopper. For when it comes to a project like a wind farm — arguably Vermont’s most reliable source of renewable energy — conditions and mitigation seem to be far more likely than an outright ruling to deny a certificate of public good. The only issue that is not subject to mitigation, and perhaps the one on which the project hinges, is the question: How will it look?

Altogether, five experts were called to testify on aesthetics. Two more were called to flesh substance out of theory: Mr. Decker testified on the impact the project would have on the area’s public investment; and Mr. Ide provided testimony that the project would fit the regional plan — a plan, by the way, he had a hand in drafting.

In making their assessments, all of the landscape architects, save one, relied on a standard that came out of Act 250 and is known as the Quechee test. The test has two prongs. Does the project have an adverse effect on its surroundings? And if it does, is it an undue adverse effect, or one that cannot be mitigated?

Among the experts were Terry Boyle, a landscape architect for 30 years who heads a firm in Burlington. Of the experts, Mr. Boyle was the only one who found that the towers would not have an adverse effect on the surrounding area.

“In this case," he said in testimony prefiled with the board in February, “distance diminishes the scale issue. The scale is appropriate to its surroundings when you consider the small footprint of four towers in the context of the larger panorama at great distances from most of the public.”

Secondly, he testified that because there are few places in the state where wind farms might work, the East Mountain project fits into the region’s larger context, or what is being called “a working landscape.”

There are only so many places where wind can be harvested, he said. “And this is one of them.”

The idea that East Mountain is an appropriate site for a wind farm because there are few other places caught attorney Dan Hershenson’s attention. As the lead attorney for the Kingdom Commons Group, he was curious to know if the same standard would apply to developing a shopping center.

Is a shopping center aesthetically acceptable because it fills a certain need? he wondered.

No, said Mr. Boyle.

But the question tweaked hearing officer Janson’s interest. Do you put a turbine on a ridgeline because that is where the resource is? he asked.

Mr. Boyle replied that neither the economic nor social impact comes into play when applying the Quechee test. Another factor that went into his conclusion was the condition of the site itself — a former radar base far away from public view.

A similar conclusion was reached by Mark Kane, a landscape architect who studied the project on behalf of the Department of Public Service. Although Mr. Kane found that the project would have an adverse effect on the landscape, he concluded it would not be an undue adverse effect because of distance.

“We believe that the average person will not be viewing this project from a vantage point closer than six miles from the site,” he said in his prefiled testimony.

Neither Mr. Boyle nor Mr. Kane thought that the former Champion lands surrounding East Mountain significantly changed the context of a working landscape. Mr. Boyle noted that the big DC powerline is only three miles away from East Mountain, and that it passed through a landscape of logging roads and clear cuts. It was a working landscape, not a wilderness, he said. Mr. Kane called the surrounding land with its conservation easements, “a context of restrictive development.”

Earlier testimony has characterized East Mountain as an island surrounded by land owned by Essex Timber and encumbered by public access and conservation easements. In 2003 the principal owner of Essex Timber, Will Merck, wrote a letter to the board in support of a neighboring wind farm.

“I believe that the public good that is created by clean, home-generated energy significantly outweighs private objections based on aesthetics,” he wrote. “Furthermore, this is a brownfield site already, surrounded by working forest, not pristine wilderness.”

Essentially it fell to a biologist to make the case that giant, lighted wind towers do not fit the character of an area known for its vast tracts of timberland, high ecological values and nights as dark as pitch.

Mr. Decker testified that ridgelines in that area represent the “cornerstone of public investments” throughout the years. But it’s an investment, he added, that would be eroded by the cumulative effects of a wind farm.

After noting that the towers would not be visible from every corner of the conserved lands, Mr. Kassel asked if a wind farm would “start in motion a process that might lead to a change in the character of the region?”

Mr. Decker replied that the process already had started with the construction of the VELCO DC line in the eighties. But that effect, he added, had been mitigated by keeping vegetation along every mile of the 50-mile swath. He also noted in his prefiled testimony that the line’s towers had purposively been kept below the ridgelines.

Mr. Kassel, however, noted that development has occurred on more prominent mountaintops in the Northeast Kingdom, like Jay Peak and Burke Mountain. And he wondered why the most visible mountaintops in the region were not the most important to protect.

In his reply, Mr. Decker used the analogy of a historical district. Putting a wind farm on East Mountain, he said, was like allowing someone to put up a building with yellow vinyl siding in a historical district composed of granite buildings.

Such a building would degrade the context of that district, he argued.

Before the PSB issues a ruling in the case, the hearing officer will release his recommendation. All the parties will be given an opportunity to respond in writing, and oral arguments may be heard before the case is turned over to the three members who make up the Public Service Board.