State Supreme Court decision may come in the fall

By Veronica Burns

BNE Energy, Inc.’s plans to build three 492-ft tall turbines on Flagg Hill Road and another three on nearby Rock Hall Road in Colebrook, Conn., are currently in an appeals holding pattern.

Nicholas Harding, attorney for the plaintiffs, says he expects oral argument to take place sometime in the fall. Harding, who represents FairWindCT, a local opposition group, and Colebrook residents Michael and Stella Somers and Susan Wagner, argues that the Connecticut General Statutes, section 16-50k(a), do not give the siting council jurisdiction over the BNE petitions.

According to the brief, the siting council also had no authority to attach conditions to declaratory rulings, nor was it authorized to ignore the requirements of the state noise law. The brief contends that the council had no evidence to support approval of the Rock Hall Road project with shorter hub heights (Colebrook South was approved at a hub height of 100 meters, Colebrook North at 80 meters).

The brief concludes that the council violated plaintiffs’ right to fundamental fairness by preventing meaningful cross-examination. “We always felt that we were not given the opportunity to go into important issues in any depth,” says FairwindCT’s president, Joyce Hemingson, “and we are hopeful that the Supreme Court will agree with us and rule in our favor.”

During council hearings for BNE’s petitions in 2011, many speakers urged the legislature to impose a moratorium on large-scale wind projects until regulations were in place. The siting council was resistant to that idea, claiming that more regulations would hinder rather than help their process.

But last December, when the council did submit wind regulations, they were rejected without prejudice by the Legislative Regulation Review Committee. The council then submitted revisions in May, but these have also been rejected, and they have until early July to submit further revisions.

Review Committee members sought clarification on various points and one member, Representative Elissa Wright of the 41st District, stated in a written comment that the proposed regulations did not pay enough attention to the “substantive concerns relating to public health and safety in the manner in which large scale wind turbines are sited and approved.”

Wright zeroed in on the council’s “liberal waivers of setbacks and shadow flicker” and concluded, “If you site them improperly and don’t include proper protections, people will not be receptive to wind generation proposals in Connecticut.”

Rock Hall Inn, which will be within 1.5 miles of the turbines, finds itself in a unique situation. The inn was listed on the National Register of Historic Places in 2010. The Connecticut State Historic Preservation Office and the U.S. Army Corps both determined that “Wind Colebrook North will have an adverse effect on Rock Hall Inn.”

Rock Hall’s proprietors, Michael and Stella Somers, see the glass as half full. “We have made a very convincing case in our appeal,” says Michael Somers, “and we have always believed that when everything was seriously looked at, these projects would be denied.”

Time is of the essence for BNE because, as of now, the federal renewable energy tax credit only applies to projects that are under construction by the end of 2013, unless Congress extends that incentive for another year. Requests for comment to BNE went unanswered.