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Faster path for wind power?

Mass. weighs bill to streamline development process


Contributing writer

When 10 windmills atop Brodie Mountain began generating electricity earlier this year, the Berkshire Wind Power Project became the largest commercial wind farm in Massachusetts.

But some say the $65 million project, first proposed back in 1998, offers a cautionary tale about the difficulty of developing even a supposedly environmentally friendly power facility.

Elsewhere in the Berkshires, the 20-turbine Hoosac Wind project proposed in the towns of Florida and Monroe remains on hold after nearly a decade of legal challenges.

And in Lenox, where town officials are discussing the possibility of building one or two turbines atop Lenox Mountain, strong local opposition is prompting the town to proceed with caution.

The concept under discussion in Lenox would provide the town with enough power to meet all its municipal energy needs and generate more than $400,000 a year in revenue, according to a feasibility study completed earlier this year. But Lenox Select Board member Linda Messana said a wind-power consultant told her it would take at least four years to get the project off the ground.

The slow progress of wind-power projects in the Berkshires is prompting renewable-energy advocates to press for legal changes at the state level. Wind power companies have long complained that the state’s regulations for wind projects are vague, contradictory and lead to countless delays.

“We need to know what the rules are,” said Peter Rothstein, president of the New England Clean Energy Council, a nonprofit group that advocates for renewable energy.

Now the Legislature is considering a bill, the Wind Energy Siting Reform Act, that supporters say would streamline regulations for large-scale wind projects. The state House approved a similar bill in 2010.

Backers say the legislation would put a stop to needless delays and groundless legal challenges, helping the state move more swiftly to get wind power installations built and cut its dependence on fossil fuels. Many environmental groups, including the Massachusetts Audubon Society and The Nature Conservancy, have endorsed the bill, saying it would help reduce the emissions that cause climate change.

But critics say the bill is an attempt by industry to circumvent local control and to force wind turbines onto communities that don’t want them.

The bill “will forcibly open our towns to wind development,” warned Eleanor Tillinghast, an outspoken opponent of wind power, in a message posted on the Web site of Preserve Lenox Mountain, a citizens group fighting the Lenox project. Tillinghast’s organization, Green Berkshires Inc. of Great Barrington, also was a key player in litigation that slowed the progress of the Hoosac Wind project in recent years.

But if the streamlined siting process passes, she warned, “there will be no way to stop the proliferation of wind turbines.”

Meanwhile, New York lawmakers passed an even more sweeping overhaul of power-facility siting rules in June.

Shifting power to the state

In Massachusetts, the Legislature’s Joint Committee on Telecommunications, Utilities and Energy held a hearing on the wind-energy bill last month at the Jiminy Peak ski resort, and another hearing is planned for Oct. 20 on Cape Cod.

State Sen. Ben Downing, D-Pittsfield, is co-chairman of the committee and voted for a similar bill last year. The concept also has strong support from Gov. Deval Patrick.

The legislation would create statewide standards for siting wind power projects with a generating capacity of 2 megawatts or more. Massachusetts communities would then be required to follow the state standards when reviewing any wind project, and towns wouldn’t be allowed to impose blanket bans on wind projects.

In the case of a dispute, either side would be able to appeal a municipality’s decision to the state Energy Facilities Siting Board. The board could override a municipality’s decision, as it already can with nuclear and fossil-fuel plants. An appeal of the state board’s decision would be heard directly by the state Supreme Judicial Court, rather than working its way through the lower courts.

Wind-power proponents say the bill would take some of the guesswork out of investing in wind power projects. Wind companies have complained that Massachusetts is a difficult state to work with because of its population density and an unclear regulatory path.

When companies have to navigate local zoning rules to get approval, they often are surprised by unforeseen pitfalls, said John Lamontagne, communications director for First Wind, a wind developer that has attempted wind projects in the state.

Even if a local government approves it, he added, a project can be tied up in litigation for years if a small minority of residents files multiple court challenges. Uniform state standards and procedures would lower that risk, Lamontagne said.

“What we’re seeking is predictability and consistency,” he said.

But wind-power skeptics see the bill as an attempted end-run around local control. They worry most that the appeal process would be routed through the state Energy Facilities Siting Board, whose members are appointed by the governor.

The Patrick administration has supported wind energy and recently set a goal for the state to generate 2,000 megawatts of wind power by 2020. As of 2009, the state’s wind-power installations had a generating capacity of less than 6 megawatts. The newly opened installation on Brodie Mountain adds 15 megawatts.

Virginia Irvine, a board member of the citizens group Wind Wise Massachusetts, said the state siting board wouldn’t dare to cross projects supported by the governor.

“That board has never turned down a developer of an energy project,” Irvine said. “The only reason this bill has been put forth is to circumvent the local vote.”

The issue has divided environmentalists.

Jennifer Ryan, legislative affairs director for Massachusetts Audubon, says the state wind-power siting bill is needed to help reduce the burning of fossil fuels, which leads to climate change. The legislation would keep local control intact and make for a more orderly permitting process without ignoring environmental concerns, she said.

“It’s a more comprehensive and more environmentally sensitive standard than in other states,” Ryan said.

But Irvine said environmental groups that support the bill are simply sacrificing local concerns at the altar of climate change.

“I believe Mass Audubon has sold out on this,” she said.

A history of delays

A 2009 state report on wind power regulations concluded that most wind farms proposed in Massachusetts have been derailed or experienced significant delays because of lawsuits. One of the projects cited in the report was the oft-delayed Berkshire Wind Power installation in Hancock.

The governor attended the project’s dedication ceremony in May, and he praised it for creating jobs and lessening the state’s reliance on fossil fuels. Other officials spoke about the resiliency needed to bring the project to fruition.

“There were several unexpected hurdles on the road to completion, and I applaud the determination of these utilities in bringing this project to life,” said Ronald C. DeCurzio, chief executive officer of the Massachusetts Municipal Wholesale Electric Company, in a statement that can only be described as an understatement.

DeCurzio’s nonprofit company originally agreed to buy the power created by the wind project, but the firm and 14 municipal utilities it represents took over the project when the original developer pulled out after extensive delays and court battles.

The original private developer, Dis-Gen, first proposed building the wind farm in New Ashford in 1998. That process took two years, long enough for the turbines originally approved by town officials to be discontinued by the manufacturer. The new model of turbines would have needed to be reapproved.

Instead, Dis-Gen moved the project across the town line to Hancock, which had no zoning. The developer got a building permit, but construction was blocked for three years by three separate attempts to pass anti-wind turbine bylaws.

Each bylaw attempt failed, but Hancock voters gathered only once a year to vote on the issue, and Dis-Gen’s building permit expired each time while the company waited for a decision. When the company reapplied for a permit, a new anti-wind bylaw would be proposed. Dis-Gen finally received town approval to begin building in 2003.

The project was further delayed in court, particularly by a legal challenge filed by a land development company, Silverleaf Inc., which wanted to build time-shared condominiums near the proposed site.

Silverleaf’s lawsuit was allowed to go forward even though the application for the wind turbine project preceded the application to build the condos, and a judge halted construction on the wind project even though some of the turbines were already erected. Eventually the wind project’s developers agreed to settle the case by changing the location of some of the turbines.

“The project was about halfway built,” said Dave Tuohey, a spokesman for the Massachusetts Municipal Wholesale Electric Co. “It added $10 million to the project’s costs.”

MMWEC and the municipal utilities, most of which are based in central and eastern Massachusetts, banded together to form the Berkshire Wind Power Cooperative Corp., which now owns the project.

Tuohey said the project’s owners have taken no official stance on the proposed legislation.

Hoosac, Lenox projects

Meanwhile, the Hoosac Wind project near North Adams received its final construction permits last year after nearly a decade of legal wrangling. But by then, the power purchase agreement for the 20-turbine project had expired; it is now being rewritten and will again need state approval.

Hoosac Wind has enjoyed support from its host towns of Florida and Monroe, but it faced multiple legal challenges from local opponents and environmentalists. The project is on its third developer.

In Lenox, town officials have been discussing construction of one or two turbines on Lenox Mountain, with the town either owning the project outright or partnering with a private developer. But the turbines would be visible from three communities, and some fear the windmills would mar the landscape and the view of the beloved mountain, which is a popular hiking destination.

Late last month, the town held a public hearing on the proposal that was well-attended by opponents, said Messana, the Select Board member.

“There is a lot of emotion and a lot of unanswered questions,” Messana said.

To answer some of these questions, the Select Board decided to appoint a six-member committee, with three supporters and three opponents of the project, to hash out the pros and cons. The committee is supposed to report back to the board by Jan. 1.

It’s not clear whether the Lenox project would be large enough to be covered by the state’s proposed new siting process, but critics say they fear the state proposal could make it more difficult to block the project by shifting more power to state regulators.

“It’s never a great idea to give politicians power from above,” said Jonas Dovydenas, a member of Preserve Lenox Mountain.

Messana said she hasn’t been following the progress of the state siting law. When told of its details, she said, “I would be concerned about local control.”

But at the same time, she added, the United States needs renewable energy.

Once while traveling through Croatia, Messana said, she was surprised to find a city with no visible power lines. When she asked a guide how the power was generated, the guide pointed to small windmills on top of each house. She returned home bothered by the comparatively slow pace of renewable energy development in this country.

“To see how far ahead of us they are is very, very scary,” Messana said.

Maine, New York changes

The siting-regulation overhaul contemplated in Massachusetts parallels similar proposals in other states around the Northeast.

Wind power developers long have complained about the different regulations they face with each state. Developers quoted in the Massachusetts state report commented that Vermont regulators often seemed to be looking to “kill a project.” The developers viewed Pennsylvania regulators as the most helpful in the eastern half of the United States.

In 2008, Maine legislators passed a law that streamlined the permitting process for wind projects on state-controlled lands. It curbed consideration of scenic impacts and set a six-month limit on the amount of time a state board could spend reviewing each project.

Since the Maine law took effect, Lamontagne, the First Wind developer, said it has helped facilitate a billion dollars of investment.

But wind power critics, like Monique Aniel of Citizens’ Task Force on Wind Power-Maine, say the law has allowed developers to run roughshod over local concerns – and to wreck scenic vistas.

“It’s an absurd and horrible story,” Aniel said.

In New York, the Legislature passed a bill in June to streamline the review process for all kinds of new power-generating facilities. The new law, the Power NY 2011 Act, was worked out in negotiations led by Gov. Andrew Cuomo and revives a review process known as Article X that expired in 2003.

The New York legislation goes further than the proposed Massachusetts bill in consolidating regulatory power at the state level. It creates a state siting board comprised mainly of state officials to oversee all potential power projects, with several seats available on an ad-hoc basis for local officials affected by the proposed project.

Michael Gerrard, a Columbia Law School professor and director of the Center for Climate Change Law, says the law will cut down on litigation and lead to quicker approval of wind projects.

“The new Article X will likely slow down small projects in friendly places and speed up all projects in unfriendly places,” Gerrard wrote in a recent issue of the New York Law Journal.

The new law, which will take effect within the next year, appears likely to expedite stalled wind-power projects near Lake Ontario and Lake Erie. According to a New York state Web site on wind projects, there currently are no major wind power projects proposed in Columbia, Rensselaer, Saratoga or Washington counties.

But New York’s earlier experience of consolidating power-plant reviews at the state level didn’t always mean a green light for developers.

Gerrard noted that in the time the original Article X rules were in effect, from 1986 to 2003, 10 fossil-fuel plants were approved, five were withdrawn or canceled, and one was denied. Four of the 10 projects that were approved were never built.

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