WINDHAM -- The state Department of Public Service's stance against building wind-testing towers here is "unprecedented" and relies on "unpersuasive and troubling" legal logic, a wind power company argues.
Furthermore, Atlantic Wind LLC contends the department's recent decision could impede development of energy across Vermont by giving towns too much authority in the permitting process.
"The department's suggestion creates a slippery slope and ... turns over certain (but not clearly defined) portions of statewide energy planning to towns," attorneys for the wind company wrote in a letter to the state Public Service Board.
Such a power shift could "very well favor parochial interests over the broader statewide public good and effectively prohibit future energy production, renewable or otherwise," the company added.
Atlantic Wind has applied for a state certificate of public good to erect two meteorological testing (MET) towers in the town of Windham and another in Grafton. Those towers, depending on the data they produce, could set the stage for Windham County's first commercial wind facility.
The Public Service Board will decide on the test tower application. But last week, the state Department of Public Service -- a separate entity -- made news by urging the board to reject Atlantic Wind's proposal because it is "wholly contrary" to Windham's town regulations.
Specifically, Windham's town plan bans commercial
The decision is seen as possibly precedent-setting. Atlantic Wind representatives agree, and they don't see that as a positive development.
The company, a subsidiary of wind giant Iberdrola Renewables, responded by warning that the department's Windham position raises "novel legal positions not found in, or supported by, existing board precedent."
In every prior case reviewed by Atlantic's attorneys, "the board has concluded that MET towers simply do not present the type of permanent land-use changes that could reasonably lead to undue interference with the orderly development of the region," the company's letter says.
"This includes cases where the application did not strictly conform to every provision in local plans or zoning regulations."
The company also is sticking to its argument that town plans are "advisory, not controlling," saying the state board should not use a town's regulations as the sole basis for its decision.
The department's new stance on the Windham application would "give towns a de facto veto over the board's statewide decision-making authority over energy-related facilities," Atlantic argues.
"DPS cites no statutory language, case law or prior board decisions to support this new position, and there is none," the Oct. 12 letter says. "The assertion is unprecedented: It directly conflicts with both the plain language of Section 248 and controlling Vermont Supreme Court law, and thus must be rejected."
Atlantic Wind's letter raises several other concerns:
* The department drew the company's ire by deciding that town plans can be overruled only in cases where an energy project addresses an "identified, urgent statewide concern" -- for instance, a power-transmission project affecting customers all around Vermont.
That argument is "unpersuasive and troubling," Atlantic Wind says.
"The department essentially asks that the board establish different standards for different types of projects," the company's letter says.
* The state also "ignores clear statutory direction to promote in-state renewable energy generation as well as the fundamental steps necessary to develop wind energy facilities, Atlantic says.
* Neither the department nor the town has explained how temporary MET towers could interfere with "orderly development" in Windham, the company claims:
"Indeed, the department acknowledged in its initial filing that the project's aesthetic impacts were not significant, and there is no evidence that three small one-acre clearings in the middle of 5,000 acres of private land subject to ongoing logging operations could result in any impact on the orderly development of the rest of the region."
Mike Faher can be reached at firstname.lastname@example.org or 802-254-2311, ext. 275.