Last week was a busy week for the Land Use Regulation Commission (LURC). First, intervention status was granted to CLF and several other organizations in the Highland Wind case, a 39 turbine project located in Somerset county. In addition, the Commission was presented with a novel legal argument. The issue revolves around what sort of scenic standard should be applied to “associated facilities” of a grid scale wind power development. The various components that make up the physical characteristics of a wind development consist of two broad categories: 1) generating facilities (the turbines, towers and transmission lines) and 2) associated facilities (the roads, buildings, generator lead lines, substations, etc…).
Historically, the scenic impact of both sets of facilities were evaluated under the Wind Energy Act (WEA) that seeks to provide meaningful guidance on evaluating scenic impacts by providing a list of 6 criteria that the applicant must adhere to. However, last week, Commissioners were asked to apply an exception provided for under the WEA statute. The exception provides that if the Commission “determines that application of the [wind-power-specific standard] to the development may result in unreasonable adverse effects due to the scope, scale, location or other characteristics of the associated facilities” then the Commission can revert to the more general standard when assessing the effect of the associated facilities on the scenic character of the affected area.
One of the issues that the parties and the Commission will be struggling with going forward is how to comprehensively analyze scenic impacts. Wind energy development, of necessity, includes associated facilities. How exactly do you go about erecting the turbines without the roads to transport the turbines in the first place? Better yet, once there, how do you collect the power generated without lead lines and substations? Should the various parts of a single, cohesive development be judged with two very different standards?
LURC was clearly in a difficult position when grappling with whether to apply the exception. The language of WEA lacked guidance on what sort of fact based criteria should be considered in determining whether the exception applies. In the end, in a decision of first impression, LURC opted to apply the exception so that associated facilities will be evaluated by a different scenic standard from generating facilities. The decision was hailed by wind opponents but the ultimate result of the decision has to be determined. What is needed, by either LURC or the legislature, is clear guidance and a meaningful standard on when the exception should apply so that all parties can move forward with a sense of consistency on what standard will be applied to a project.