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On Thursday, an obscure legislative committee will have the final say over new wind-power rules that have sent shock waves through Vermont's renewable-energy community.
"It is really a ban on wind," says AllEarth Renewables CEO David Blittersdorf, who has pushed wind projects of his own. "I am going to have to stop any development if this goes through."
Wind opponents, on the other hand, are prepared to settle for what they see as an improvement over the status quo.
"I do not want to see this rule gummed up, so I am being a realist here," says Annette Smith of Vermonters for a Clean Environment, which opposes large-scale wind. "I would love to see it changed, but let's get it in place and see what happens."
Gov. Phil Scott, another opponent of large-scale wind, has given the rules his seal of approval. Asked at a May 31 press conference whether they amount to a ban on wind turbines, he responded, "I think it will help a great deal ... I think we'll have less industrial wind on our ridgelines."
The rules were crafted by the state Public Service Board after a lengthy process of staff research and public hearings. Now the panel's work goes before the Legislative Committee on Administrative Rules, which can approve the rules or send them back.
There's a certain mystery to this saga: Two of the three PSB members, Margaret Cheney and Sarah Hofmann, were appointed by the pro-renewable former governor Peter Shumlin. Outgoing PSB chair James Volz was originally chosen by former governor Jim Douglas and reappointed by Shumlin. So how is it that these three people crafted a set of wind rules that earned Scott's applause?
The answer is shrouded in the mantle of the PSB's "quasi-judicial status." Like judges, board members deliberate behind closed doors and don't speak publicly about their work.
PSB staffer Tom Knauer, who led a three-person team that guided the rulemaking, was willing to explain the process to Seven Days. But he declined to comment on board actions. The final decision on noise levels, for example, "was made by the board, not the staff, so that's the deliberative process that I can't tell you."
But while many answers are locked inside three quasi-judicial minds, the steps board members took are documented in a trove of public records obtained by the pro-wind Vermont Public Interest Research Group and independently reviewed by Seven Days.
There's a clear trend line through the documents. During an 11-month period, board and staff members struggled through a thorny issue on an unforgiving schedule. As time passed, the rules became tighter — and less friendly toward wind development — especially after Scott took office.
The rulemaking was mandated by Act 174, passed by the legislature in 2016 to address concerns about the siting of solar and wind installations. It called for new rules by July 1, 2017. That may seem like a long time, but Knauer's team had to review the scientific research on wind noise, schedule hearings and solicit testimony, receive and respond to inquiries from the public, and interact frequently with the board.
In September, the PSB issued a proposal to hire an acoustics expert to assist the team — but no one bid for the job. The board then dropped that effort.
VPIRG's clean-energy advocate, Sarah Wolfe, calls that a big mistake. "It's an incredibly complicated, technical rulemaking," she says.
Without an expert, Knauer and colleagues John Cotter and Kevin Fink soldiered on. One basic issue: Which criteria would be used in writing the rules? Public health? Aesthetic considerations around noise and visual impact? The negative effects experienced by some neighbors?
One criterion that wasn't on the list: Vermont's ambitious renewable-energy goals. "The question of public good was broader than the board was looking to regulate," Knauer explains. "I would say that that was not a specific consideration or a specific aim of this rule."
On November 22, the team wrote a memo to board members discussing aesthetics as a criterion. Anti-wind advocates had argued for the standard, but the team was undecided. The memo noted that aesthetic considerations "may present a greater hurdle for proposed wind projects."
The memo also addressed "setback" — the idea that turbines should be at a distance from any inhabited building. Setback was discussed as an alternative to a sound level measured in decibels, or dBA. One or the other, not both.
The team reported that the Shumlin administration, through its Department of Public Service, favored sound levels over setbacks. It also advocated for a noise limit of 45 dBA, as measured outside any nearby resident's home. (The board makes rules and sets utility rates; the department is a policy arm of the administration and also, oddly, serves as a public advocate before the board.)
At an open workshop on December 2, the board heard a presentation from Chris Ollson, of Ontario, Canada-based Ollson Environmental Health Management. Ollson argued that an exterior limit of 45 dBA was low enough to avoid human health impacts. Based on a review of available research, Ollson asserted that "when sited properly, wind turbines do not cause adverse health effects."
After Scott became governor, Wolfe notes, the state "didn't use him in the process."
On January 17, less than two weeks after Scott's inauguration, the Department of Public Service now reporting to him sent a memo to the board recommending that aesthetics be a criterion in making the rules.
That memo "was intended to convey the policy view of the Scott administration," the department's new commissioner, June Tierney, wrote in an email to Seven Days.
"My understanding of the record ... shows that that January communication is the first time the department had advocated for aesthetics," recalls Knauer. "Prior to that January filing, the department's comments had focused on decibel levels."
On February 22, Knauer sent an email to the PSB reporting that "there is vast literature on [turbine noise], and a supporting basis could be found for many different sound pressure levels."
The email accompanied a memo outlining key items from Knauer's review of the literature. He emphasized one particular study: a Swedish paper published in 2000 reporting that "annoyance" was perceived by some at 35 dBA and that annoyance grew rapidly at 40 dBA or higher.
VPIRG's Wolfe asserts that the research was based on small sample sizes. While it included some 500 participants, they were broken down into subgroups. Therefore, she notes, the 20 percent who reported annoyance at a certain level actually represented just eight people. "Studies that have higher participation found much lower annoyance rates," Wolfe maintains.
In late February, the team realized that time was growing short. In order to clear all bureaucratic hurdles in time for July 1 implementation, the board had to issue its proposed rule in early March — just a few days later.
It did so, stunning the renewables community by mandating noise limits of 35 dBA at night and 42 during the day, and imposing a stiff setback requirement. The combination, wind advocates assert, would forbid wind development almost anywhere in Vermont.
More hearings and written testimony followed. On May 16, the PSB issued a slightly amended set of rules. The daytime limit remained at 42 dBA, but the nighttime limit was raised to 39. The setback standard was unchanged.
In a cover letter, the board laid out three criteria, in this order: first, protection of public health; second, reduction of "annoyance levels that some people might experience from turbine sounds"; and, finally, encouragement of renewable energy.
The PSB had adopted lower noise limits than originally proposed — and used subjective criteria in so doing. It imposed both noise limits and a setback requirement. The mandated setback was 10 times the height of a turbine, which can be as high as 500 feet. Under the rule, turbines would have to be located nearly one full mile away from any inhabited building in any direction.
This much is clear from the public record. What remains unknown is how and why the board — and particularly Cheney and Hofmann — came to adopt such stringent rules on wind. We don't know because they can't say.
That's not the case in other states. "In New Hampshire, all deliberations are transparent," says Smith. "You can sit there and listen to them."
Gee, maybe Vermont could do without this quasi-judicial rigmarole.
If you ask me why the rules came out the way they did, a couple of things come to mind: First, there's widespread fatigue with the issue. Some may have wanted to get it over with. Second, while the board is independent, perhaps its members could see which way the, ahem, wind was blowing.
This Thursday, the rules will go before the Legislative Committee on Administrative Rules, which is tasked with ensuring that new rules comply with statute. Wind advocates will try to convince the committee that the PSB went beyond legislative intent, which would be grounds for rejection.
One of the people most familiar with legislative intent is former Democratic state representative Tony Klein. Before his retirement in 2016, he chaired the House committee that dealt with energy issues and was involved in the drafting of Act 174.
"I think LCAR has a real basis for rejecting the rules," he says decisively. He sees those rules as "a de facto ban on wind," which he asserts "was never the intent of the legislature."
But ridgeline wind opponent Smith has a warning for her adversaries. She notes that Scott has just appointed a new PSB chair, Anthony Roisman, who shares the governor's opposition to large-scale wind. She says of the current rules, "This may be the best they're going to get."
She has a point. And Klein, a longtime renewables advocate, kind of agrees with her.
"The opposition to wind in this state, for the short term, has won the battle," he says. Even without the new rules, he adds, "I can't imagine any potential developer of a large project entertaining going through this process in this toxic environment. It would be a real crapshoot, and an expensive one."
In one way, the LCAR hearing is a decisive moment for large-scale turbines in Vermont. In another, it may prove to be nothing more than a whisper in the wind.
For many in the state's environmental community, there's bitter irony in the timing of LCAR's conclave. Last Thursday, President Donald Trump withdrew from the Paris climate accord, calling into question the nation's commitment to fighting climate change.
Scott's reaction was mixed: He criticized the president's decision and joined a coalition of states pledging to abide by the Paris accord. But on the very day of Trump's withdrawal, the governor appointed a PSB chair who shares his anti-wind position.
"Gov. Scott's intention is to talk the talk, but he's severely lacking on the walk," says Wolfe. "His actions have moved us in the wrong direction on climate."Correction, June 7, 2017: An earlier version of this post contained incorrect information about new daytime decibel limits.