Public Utility Commission staff attorney John Cotter, PUC member Margaret Cheney and utilities analyst Tom Knauer testify before the Legislative Committee on Administrative Rules.
After kicking the can down the road at its previous meeting on June 22, the Legislative Committee on Administrative Rules has put off action for two more weeks on new rules that set noise limits for wind turbines.
The rules were crafted by the Public Utility Commission (formerly the Public Service Board), and have been criticized by advocates on both sides of the wind issue. Opponents of large-scale wind say the rules are too permissive, while renewable energy advocates say they would comprise an effective moratorium on large turbines.
The rules must be approved by LCAR, which is often a formality. In this case, it’s anything but. The panel met Thursday, the first time since June when all eight members could be present. But they were clearly undecided on a number of questions. After a nearly four-hour hearing, LCAR and representatives of the PUC agreed to a two-week delay to allow the commission to provide more information.
It was clear from the questioning that there’s a solid majority of LCAR that is inclined to reject the rules. Only its two Republican members — Sen. Joe Benning (R-Caledonia) and Rep. Linda Myers (R-Essex) — appear to favor them.
Opponents of ridgeline wind provided a striking visual display at the hearing, as they faced the committee wearing their trademark lime-green vests. It was an impressive sight, but there were only 22 of them in the room. And they didn’t change anybody’s mind.
LCAR members expressed three primary areas of skepticism. First was the noise limit of 42 decibels in daytime and 39 at night.
“Other states have significantly higher decibel limits: 45, 50, 60,” noted LCAR chair Sen. Mark MacDonald (D-Orange). “We’d be the most restrictive of any state in the country. I’d be alarmed if the commission proposed the most permissive numbers; I’m equally concerned that they come in as the lowest.”
“Our charge wasn’t to consider other jurisdictions,” responded PUC policy analyst Kevin Fink. “It was to gather information and expertise and make our own determinations.”
The second issue has to do with planning a new project. A turbine proposal must, on paper, meet state noise limits before it can be permitted. But some LCAR members pointed out that the PUC’s rules wouldn’t allow the developer to incorporate modern noise-reduction technology in a turbine’s design. That would make it harder for a project to pass muster.
Finally, the PUC had proposed noise limits and a setback requirement — that the distance between a turbine and any occupied structure be at least 10 times the height of the turbine. Large-scale turbines are 500 feet high, so they would have to be sited almost a mile from any building.
Representatives of the PUC told the committee, just as they had in June, that they were willing to scuttle the setback rule. This mollified LCAR skeptics, but didn’t convince them. They seem determined to wring concessions on the other two points before approving the rules, and left the door open for further questions and objections at the committee’s next meeting, scheduled for October 26.
Benning argued for limited action by LCAR. “The courts give great deference to the body proposing a rule,” he noted. “We are not a committee of expertise. There has been a wealth of evidence presented to the commission.”
He argued that LCAR was overstepping its bounds by trying to make policy instead of considering rules on procedural grounds. And he added with a touch of exasperation, “This horse has been beaten to death by this commission and this committee.”
“Our business is beating dead horses,” MacDonald replied forcefully. “That’s what we do. We do not set policy here."
LCAR member Sen. Ginny Lyons (D-Chittenden) argued that it was the PUC that was overstepping its bounds, by setting rules that would ban large-scale wind. She said that policy question is for the legislature to decide.
“That’s the elephant in the room,” said PUC member Margaret Cheney. “The perception is that this rule would effectively ban wind. If we thought that the rule was an effective moratorium, we wouldn’t have offered it.”
Her words were carefully chosen. Lyons didn't claim that the rule would prohibit all wind — just large-scale turbines.
The PUC has two weeks to change minds on LCAR. Lyons was “dubious” that it can do so. “It looks like the rules are extremely conservative and extreme,” she said. But she expressed a hint of optimism due to the commission’s willingness to drop the setback requirement and provide more information on other points.
If LCAR formally objects to an administrative rule, the agency can still adopt it. But the objection would be powerful evidence against the rule in any subsequent court action. Given the clear dissatisfaction expressed by advocates on both sides of ridgeline wind, a lawsuit appears likely from one side, the other or both.