Posted by: Patricia Salkin | December 21, 2014

CT Supreme Court Upholds Siting Council’s Approval Wind Turbine Projects

In 2010, pursuant to General Statutes § 16-50k (a)4 and § 4-176(a), BNE sought approval from the Connecticut Siting Council to construct and operate 1.6-megawatt wind turbines at two locations in Colebrook without first obtaining a certificate of environmental compatibility and public need. BNE claimed that it was not required to obtain certificates because the projects were “grid-side distributed resources . . . facilit[ies]” for purposes of § 16–50k (a). Objectors intervened in the proceedings and submitted evidence that BNE had failed to establish that the proposed projects would comply with state noise law and water qual¬ity standards. The council granted both petitions, with conditions. The trial court dismissed appeals. The highest court affirmed, first rejecting an argu¬ment that the council lacked jurisdiction because the projects are neither “grid-side distributed resources project[s]” nor “facilit[ies]” for purposes of General Statutes § 16-50k (a). Objectors claimed that the legislature intended to exclude from the scope of § 16-50i(a)(3) any electricity-generating facility that does not use fuel and that wind is not fuel. The court noted that renewable energy sources are statutorily defined to include wind and that the statute was not intended to exclude an electricity-generating facility from the scope of the statutory scheme if it used no fuel. The council was authorized to attach conditions to declaratory rulings issued pursuant to § 16-50k (a) and the conditions were supported by substantial evidence. The council was authorized to approve the projects despite noncompliance with state noise law (General Statutes § 22a–72 (c)); “the mission of the council is to balance public need and environmental impact” and “the council had the authority to find that a reasonable approach to noise pollution was to measure the harm at residences rather than property lines.” The coun¬cil’s order that the hub heights on one project be lowered to 80 meters was supported by substantial evidence that the shorter hubs would be feasible and would reduce visibility concerns; it is within the council’s broad discretion to balance visibility concerns with noise concerns. Rejecting various challenges implicating the council’s procedures, the court stated that the objectors had ample opportunity prior to and during the hearings to obtain and present evidence.

FairwindCT, Inc. v. Conn. Siting Council, 2014 WL 4548056 (CT 9/23/2014)

The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR313/313CR71.pdf

Editor’s note: This abstract appears in the November 2014 issue of Planning and Environmental Law. See, http://www.planning.org


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