Lawsuit Claims State Went Too Easy On Wind Energy Company

JAY STAPLETON
The Connecticut Law Tribune
2013-12-06 14:02:08.0

For several years now, a company called BNE Energy has wanted to place electricity-generating turbines in the Litchfield County town of Colebrook. The proposal has sparked vigorous legal opposition from nearby property owners and has prompted a long-running debate over proposed regulations governing wind energy projects in the state.

Now BNE is in the middle of another dispute. In 2010, in Canaan, about 20 miles west of the proposed Colebrook wind farm, the energy firm paid to have a wide swath of tall hemlocks, oaks and other trees cut down. The stated goal was to facilitate a study to see if that site would be appropriate for turbines.

BNE Energy thought the clearing was being done on private land, and even paid the adjacent-land owner for the rights. But it turns out the trees were actually in the Housatonic State Forest.

“BNE believed they were on private property where they had permission to clear the land and did immediately report the situation to us when they became concerned that they might have encroached on state property,” Dennis Schain, a spokesman for the state Department of Energy and Environmental Protection, said in an email that was released by an environmental group.

The agency reached a settlement agreement with BNE earlier this year. The energy company will have to pay for a survey of the cleared area as well as $10,000 in fines. The fine might be reduced if BNE finances an environmental study of the negative impact of cutting the trees.

Berkshire-Litchfield Environmental Council Inc., a nonprofit land preservation group, had been tracking the case since the trees came down. They view BNE in a harsher light than does the state agency. While the DEEP says BNE self-reported the cutting on public land, the environmental group says the matter was actually brought to the agency by reporters for the Hartford Courtant.

As such, the Berkshire-Litchfield group doesn’t believe the settlement goes far enough, especially since the state did not order the company to repair the damaged forest, which it says is required under state law. The organization filed a lawsuit earlier this year against DEEP and the state Attorney General’s Office, seeking to have the settlement agreement revoked.

The lawsuit calls for voiding the state’s settlement with BNA over cutting down more than 332 trees on nearly three acres, on the grounds that the deal violates state law. In documents that have been filed in the case, the environmental group points to a settlement in another tree-clearing case in which former attorney general Richard Blumenthal filed a lawsuit against Lamar Advertising of Hartford, which had illegally cleared 83 trees on state land along Interstate 84 to maximize visibility of a billboard.

Blumenthal’s lawsuit sought monetary damages for the restoration of property. In 2010, the state settled with Lamar for $188,000, which was to be used to replant trees where the cutting had been done.

In 2006, the legislature approved a law providing specific penalties for parties that unlawfully cut trees on state land. It calls for a fine to be opposed, and adds civil liability exposure of “three times the value of the trees, plus the cost of restoring the land.”

Attorneys associated with the Berkshire-Litchfield case say the lawsuit is important because for the first time a state trial court is being asked to enforce the law, which requires state forests to be “restored to their natural state” when trees are cut down without permission.

Nicholas Harding, an environmental lawyer with Reid & Riege in Hartford, is representing Berkshire-Litchfield Environmental Counsel in the DEEP lawsuit. He also represents FairWindCT, a group of land owners opposed to the Colebrook wind farm. In June, the Connecticut Siting Counsel approved the Colebrook farm, but a lawsuit by opponents has halted work on the project.

Harding notes that there are a limited number of lawyers in Connecticut who do this sort of work, and that he regularly represents those accused of illegal cutting as well as environmental groups.

“Here’s the importance” of the latest lawsuit, he said. “I defend a lot of people and industrial clients who make mistakes from time. So from now on, when someone wants to hold my clients accountable, I’m going to say, ‘Well these guys [BNE] cut down a million dollars worth of trees, and they only had to pay $10,000.”

Harding argues in the lawsuit filed in Hartford Superior Court that the DEEP did not follow the 2006 law when settling its complaint with BNE. In the complaint, the plaintiffs argue that the consent agreement reached between BNE and the DEEP should be voided. “Then we’ll see if the [current] Attorney General will step up and protect the forest the way Richard Blumenthal would have,” Harding said.

The named defendants in the lawsuit are Daniel Esty, commissioner of the Connecticut Department of Energy and Environmental Protection, Susan Whalen, the deputy commissioner of the agency, and Attorney General George Jepsen. The Attorney General’s Office defends the state in all civil legal matters and is routinely included in lawsuits against state agencies.

According to the lawsuit, the area cleared of trees included a “dry subacidic forest,” which is considered by environmentalists to be a “key habitat of greatest conservation need.”

In addition to the trees, the area was a habitat for red bats, hoary bats, raptors and hawks.

Starling Childs, a Yale-educated forester who has been supporting the environmental group’s legal fight, said the punishment BNE received was insufficient.

“There is a very defined and stated protocol for restitution and restoration under such egregious natural area destruction and protected forest trespass such as the folks from BNE did,” Childs said. “We engaged one of the best tree-appraisal specialists in the state, and based on the defendant’s own stump tally count of more than 500 trees, and measurements of those trees submitted to DEEP, the fair estimate runs well north of $1 million.”

The lawsuit calls for the state to recover that amount from BNE. But Harding said the claim is more about establishing how the state will prevent similar deforesting events from occurring in the future.

He is quick to note that he has no major complaints with Esty in general: “I think Esty has done some very good things on his watch.”

Harding said there have been ongoing settlement talks with the parties in the lawsuit.

Paul Corey, general counsel and chairman of BNE Energy, did not return calls seeking comment. The DEEP deferred comments to the Attorney General’s Office, which said in a statement that the lawsuit filed by the Berkshire-Litchfield Environmental Council “lacks merit.”

“We will continue to defend this suit,” the A.G.’s statement said. “We believe DEEP acted within its authority in seeking to resolve the matters through a consent decree. We remain hopeful that his matter can be resolved through discussions with” the Berkshire-Litchfield Environmental Council.•

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Opinion: Connecticut deserves a good wind turbine law

By Joyce Hemingson: Monday, December 2, 2013

The issues that have been raised about industrial wind turbines are not new. They date back to the legislature’s Energy & Technology Committee public hearing on Feb. 3, 2011, which led to the passage of Bill 11-245 in the last hour of the legislative session in June 2011. Continue reading

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Fwd: UTILITY COMPANY SENTENCED IN WYOMING FOR KILLING PROTECTED BIRDS AT WIND PROJECTS

Subject: UTILITY COMPANY SENTENCED IN WYOMING FOR KILLING PROTECTED BIRDS AT WIND PROJECTS
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FOR IMMEDIATE RELEASE                                                                 ENRD
FRIDAY, NOVEMBER 22, 2013                                                          (202) 514-2007
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UTILITY COMPANY SENTENCED IN WYOMING FOR KILLING PROTECTED BIRDS AT WIND PROJECTS
          WASHINGTON Duke Energy Renewables Inc., a subsidiary of Duke Energy Corp., based in Charlotte, N.C., pleaded guilty in U.S. District Court in Wyoming today to violating the federal Migratory Bird Treaty Act (MBTA) in connection with the deaths of protected birds, including golden eagles, at two of the companys wind projects in Wyoming.  This case represents the first ever criminal enforcement of the Migratory Bird Treaty Act for unpermitted avian takings at wind projects.
          Under a plea agreement with the government, the company was sentenced to pay fines, restitution and community service totaling $1 million and was placed on probation for five years, during which it must implement an environmental compliance plan aimed at preventing bird deaths at the companys four commercial wind projects in the state.  The company is also required to apply for an Eagle Take Permit which, if granted, will provide a framework for minimizing and mitigating the deaths of golden eagles at the wind projects.
          The charges stem from the discovery of 14 golden eagles and 149 other protected birds, including hawks, blackbirds, larks, wrens and sparrows by the company at its Campbell Hill and Top of the World wind projects in Converse County between 2009 and 2013.  The two wind projects are comprised of 176 large wind turbines sited on private agricultural land.
          According to the charges and other information presented in court, Duke Energy Renewables Inc. failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths by collision with turbine blades, despite prior warnings about this issue from the U.S. Fish and Wildlife Service (USFWS).  However, the company cooperated with the USFWS investigation and has already implemented measures aimed at minimizing avian deaths at the sites.
          This case represents the first criminal conviction under the Migratory Bird Treaty Act for unlawful avian takings at wind projects, said Robert G. Dreher, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.  In this plea agreement, Duke Energy Renewables acknowledges that it constructed these wind projects in a manner it knew beforehand would likely result in avian deaths. To its credit, once the projects came on line and began causing avian deaths, Duke took steps to minimize the hazard, and with this plea agreement has committed to an extensive compliance plan to minimize bird deaths at its Wyoming facilities and to devote resources to eagle preservation and rehabilitation efforts.
          The Service works cooperatively with companies that make all reasonable efforts to avoid killing migratory birds during design, construction and operation of industrial facilities, said William Woody, Assistant Director for Law Enforcement of the U.S. Fish and Wildlife Service.  But we will continue to investigate and refer for prosecution cases in which companies – in any sector, including the wind industry – fail to comply with the laws that protect the publics wildlife resources.
          More than 1,000 species of birds, including bald and golden eagles, are protected under the Migratory Bird Treaty Act (MBTA).  The MBTA, enacted in 1918, implements this countrys commitments under avian protection treaties with Great Britain (for Canada), Mexico, Japan and Russia.  The MBTA provides a misdemeanor criminal sanction for the unpermitted taking of a listed species by any means and in any manner, regardless of fault.  The maximum penalty for an unpermitted corporate taking under the MBTA is $15,000 or twice the gross gain or loss resulting from the offense, and five years probation.
          According to papers filed with the court, commercial wind power projects can cause the deaths of federally protected birds in four primary ways: collision with wind turbines, collision with associated meteorological towers, collision with, or electrocution by, associated electrical power facilities, and nest abandonment or behavior avoidance from habitat modification.  Collision and electrocution risks from power lines (collisions and electrocutions) and guyed structures (collision) have been known to the utility and communication industries for decades, and specific methods of minimizing and avoiding the risks have been developed, in conjunction with the USFWS. The USFWS issued its first interim guidance about how wind project developers could avoid impacts to wildlife from wind turbines in 2003, and replaced these with a tiered approach outlined in the Land-Based Wind Energy Guidelines (2012 LBWEGs), developed with the wind industry starting in 2007 and released in final form by the USFWS on March 23, 2012.  The Service also released Eagle Conservation Plan Guidance in April 2013 and strongly recommends that companies planning or operating wind power facilities in areas where eagles occur work with the agency to implement that guidance completely.
          For wind projects, due diligence during the pre-construction stageas described in the 2003 Interim Guidelines and tiers I through III in the 2012 LBWEGsby surveying the wildlife present in the proposed project area, consulting with agency professionals, determining whether the risk to wildlife is too high to justify proceeding and, if not, carefully siting turbines so as to avoid and minimize the risk as much as possible, is critically important because, unlike electric distribution equipment and guyed towers, at the present time, no post-construction remedies, except curtailment (i.e., shut-down), have been developed that can render safe a wind turbine placed in a location of high avian collision risk.  Other experimental measures to reduce prey, detect and deter avian proximity to turbines are being tested.  In the western United States, golden eagles may be particularly susceptible to wind turbine blade collision by wind power facilities constructed in areas of high eagle use.
          The $400,000 fine imposed in the case will be directed to the federally-administered North American Wetlands Conservation Fund.  The company will also pay $100,000 in restitution to the State of Wyoming, and perform community service by making a $160,000 payment to the congressionally-chartered National Fish and Wildlife Foundation, designated for projects aimed at preserving golden eagles and increasing the understanding of ways to minimize and monitor interactions between eagles and commercial wind power facilities, as well as enhance eagle rehabilitation and conservation efforts in Wyoming.  Duke Energy Renewables is also required to contribute $340,000 to a conservation fund for the purchase of land, or conservation easements on land, in Wyoming containing high-use golden eagle habitat, which will be preserved and managed for the benefit of that species.  The company must implement a migratory bird compliance plan containing specific measures to avoid and minimize golden eagle and other avian wildlife mortalities at companys four commercial wind projects in Wyoming.
          According to papers filed with the court, Duke Energy Renewables will spend approximately $600,000 per year implementing the compliance plan.  Within 24 months, the company must also apply to the U.S. Fish and Wildlife Service for a Programmatic Eagle Take Permit at each of the two wind projects cited in the case.
          The case was investigated by Special Agents of the U.S. Fish and Wildlife Service and prosecuted by Senior Counsel Robert S. Anderson of the Justice Departments Environmental Crimes Section of the Environment and Natural Resources Division and Assistant U.S. Attorney Jason Conder of the District of Wyoming.
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Judge orders limited use of wind turbines

Nov. 23, 2013 Republican American story: 
Judge orders limited use of wind turbines

ASSOCIATED PRESS

BARNSTABLE, Mass. — The town of Falmouth was ordered by a judge on Friday to limit the hours two town­owned wind turbines operate after neighbors blamed them for health problems.

Effective immediately, the energy-generating turbines at the Cape Cod town’s waste­water treatment facility are only allowed to operate from 7 a.m. until 7 p.m. on every day of the week except Sun­day, and are not allowed to operate at all on Thanksgiv­ing Day, Christmas Day and New Year’s Day, Superior Court Judge Christopher Muse wrote in the decision.

Neil and Elizabeth Ander­sen, who live about a quarter of a mile from the turbines, said they caused “continuous insomnia, headaches, psycho­logical disturbances, dental injuries, and other forms of malaise” they had not suf­fered prior to the turbines’ construction.

“The court finds the Ander­sens claims that they did not experience such symptoms prior to the construction and operation of the turbines, and that that each day of opera­tion produces further injury, to be credible,” the judge wrote.

Continued operation of the turbines at previous levels put residents at risk of “irreparable physical and psychological harm,” the judge wrote.

The environmental group Wind Wise Massachusetts called it a landmark decision.

“This is believed to be the first time that a court in the U.S. has ruled that there is sufficient evidence that wind turbines near residential areas are a health hazard to families living nearby,” said Virginia Irvine, president of Wind Wise Massachusetts.

The decision has repercus­sions in other Massachusetts towns where wind turbines are being blamed for health problems, Neil Andersen said. “It’s torture,” he said of the turbines’ noise and pres­sure effects. “But this deci­sion is a victory. It gives us some relief.”

The 1.65 megawatt tur­bines were erected about 3½ years ago to power the treat­ment plant and to create rev­enue for the town by selling electricity back to the grid.

They ran 24/7 at first, but more recently have been run­ning from 5 a.m. until 9 p.m.

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Environmental group sues state for going easy on wind-power company that cut down trees in state forest

Read Article at:
http://www.raisinghale.com/2013/11/07/environmental-group-sues-state-easy-on-wind/

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Maine Legislature’s energy docket set for full slate in 2014

Read article at: http://bangordailynews.com/2013/11/17/politics/maine-legislatures-energy-docket-set-for-full-slate-in-2014/

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Maine wind makes CT solar affordable

Gov. Dannel P. Malloy’s decision to finance a $1 billion wind farm in Maine will help Connecticut attain its renewable energy goals and support a solar farm development in Lisbon, with minimal impact on ratepayers, according to an administration source.

When the Public Utilities Regulatory Authority on Oct. 23 approved Malloy’s plan to fund a 250 megawatt wind farm in Maine and a 20 megawatt solar farm in Lisbon, the regulators noted the Maine deal didn’t have a specific benefit to Connecticut.

Read the Whole Article:  http://www.hartfordbusiness.com/article/20131111/PRINTEDITION/311089969/1020?utm_source=enews&utm_medium=Energy%2BNews&utm_campaign=Tuesday

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Technology that would shut down the machines when shadow flicker is detected

Read Article: http://www.patriotledger.com/topstories/x1069223819/Scituate-resident-seeks-state-regulations-on-turbine-shadow-flicker

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Regulators Approve Maine Wind Contract But Connecticut To Miss Some Benefits

See article at:  http://www.courant.com/business/hc-renewabale-energy-approval-20131024,0,2700919.story

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Public Health Disaster Rolling Across Massachusetts

See article at:  https://www.wind-watch.org/alerts/2013/10/23/public-health-disaster-rolling-across-massachusetts/

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