Fox Islands Wind Neighbors v. Dep't of Envtl. Prot.

• Decision Date: 07 May 2015
• Docket Number: Docket No. Ken–14–137.
• Parties: FOX ISLANDS WIND NEIGHBORS, et al. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al.
• Court: Maine Supreme Court

116 A.3d 940

2015 ME 53

FOX ISLANDS WIND NEIGHBORS, et al.

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al.

Docket No. Ken–14–137.

Supreme Judicial Court of Maine.

Argued: Dec. 9, 2014.

Decided: May 7, 2015.

Janet T. Mills, Attorney General, and Gerald D. Reid, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellants Department of Environmental Protection and Patricia Aho.

Catherine R. Connors, Esq. (orally), and Nolan L. Reichl, Esq., Pierce Atwood LLP, Portland, for appellant Fox Islands Wind, LLC.

Rufus E. Brown, Esq. (orally), Brown & Burke, Portland, for cross-appellants Fox Islands Wind Neighbors, et al.

David G. Webbert, Esq., and Roberta L. de Araujo, Esq., Johnson, Webbert & Young, LLP, Augusta, for amicus curiae Maine Employment Lawyers Association.

Zachary L. Heiden, Esq., American Civil Liberties Union of Maine, Portland, for amicus curiae American Civil Liberties Union of Maine.

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and CLIFFORD, JJ.

Opinion

JABAR, J.

[¶ 1] The Department of Environmental Protection (DEP), Fox Islands Wind Neighbors (FIWN), and Fox Islands Wind (Fox Island) all appeal from a judgment entered by the Superior Court (Kennebec County, Murphy, J. ) on FIWN's Rule 80C petition, reversing DEP's condition compliance order (CCO), remanding to DEP, and dismissing FIWN's First Amendment retaliation claim.¹ We vacate the judgment.

I. BACKGROUND

[¶ 2] On March 24, 2009, Fox Island applied to DEP for certification pursuant to 35–A M.R.S. § 3456 (2014) to build and operate a small-scale wind energy development project in Vinalhaven. DEP approved the application on June 5, 2009, and issued a section 3456 certification to Fox Island. As part of the certification, “condition #8” required Fox Island to implement a noise-reduction operation plan using a “revised operation protocol” if the wind turbines produced noise in excess of applicable standards. Having received certification for its project, Fox Island began construction.

[¶ 3] Some neighbors, organized as FIWN, began complaining about the noise from the turbines soon after the project began operating. FIWN hired an attorney and an acoustical consultant who collected sound data. Beginning in April 2010, FIWN submitted numerous noise complaints to DEP and requested that DEP take action against Fox Island requiring it to comply with the certification's conditions. DEP contacted the Town of Vinalhaven to inquire whether it wished to take enforcement action against Fox Island.² By letter dated November 22, 2010, the Town declined to pursue enforcement action and instructed DEP to “continue with enforcement.”

[¶ 4] On November 23, 2010, DEP began the enforcement process by issuing a formal noncompliance letter to Fox Island. DEP found that on July 17 and 18, 2010, Fox Island exceeded the 45 dBA nighttime sound limit specified in the certification and instructed Fox Island to submit a “revised operation protocol” within 60 days as required by condition #8. After numerous exchanges between DEP and Fox Island, including several data requests by DEP and Fox Island's submission of a proposed operation protocol that DEP rejected, DEP demanded that Fox Island submit a revised operation protocol for approval.

[¶ 5] Fox Island submitted a revised operation protocol on April 11, 2011, and DEP issued a CCO on June 30. The CCO accepted Fox Island's revised protocol, finding that it “satisfactorily addresses the requirement of Special Condition #8 of [the certification] with respect to the conditions present during the July 2010 complaint period.” The CCO also required Fox Island to implement certain noise reduction mechanisms when wind conditions matched those present on July 17 and 18, 2010.³

[¶ 6] On July 28, 2011, FIWN filed a Rule 80C petition in the Superior Court, asserting that the CCO was a product of political intervention; violated statutory provisions; exceeded DEP's statutory authority; was unsupported by substantial evidence; was arbitrary and capricious; and constituted an abuse of DEP's discretion. After numerous motions and orders, the court denied a motion to dismiss brought by Fox Island and DEP, which asserted that judicial review of the CCO was barred by 35–A M.R.S. § 3456(2). The court found that the CCO was an enforcement action by DEP subject to judicial review, and that therefore section 3456(2) did not apply.

[¶ 7] Nine days later, DEP filed a motion to reconsider and raised a new issue claiming that FIWN lacked standing to challenge DEP's enforcement of violations. The court denied the motion to reconsider and found that FIWN had standing. FIWN then filed an amended petition adding two additional claims for relief under the United States Constitution and 42 U.S.C. § 1983 (2014).⁴ The court dismissed the independent claims, but granted FIWN permission to argue the constitutional claims as part of the Rule 80C proceeding.

[¶ 8] On March 10, 2014, the court issued its order on the Rule 80C petition, in which it restated its finding that the CCO was an enforcement action subject to judicial review. The court then reversed the CCO and remanded the matter to DEP with instructions that DEP “require an operational protocol which would prevent further violations of the noise rules,” and issue a CCO that would address “significant vertical and directional wind shear,” rather than wind direction, as the main causative factor of Fox Island's noise infractions.⁵ The court denied FIWN's constitutional claims. DEP and Fox Island appealed, and FIWN cross-appealed.

II. DISCUSSION

[¶ 9] Generally, in Rule 80C appeals, a remand from the Superior Court to an executive agency for additional decision-making is not a final judgment. Forest Ecology Network v. LURC, 2012 ME 36, ¶ 16, 39 A.3d 74. Nonetheless, in circumstances where “denial of appellate review could result in judicial interference with apparently legitimate executive department activity,” we have recognized a narrowly construed separation of powers exception to the final judgment rule in extraordinary circumstances.⁶ Id. ¶ 18 (quotation marks omitted). This separation of powers exception applies “when prompt appellate review is required to prevent judicial interference with apparently legitimate executive department activity and thereby safeguard the separation of powers, and in order to avoid undue [judicial] disruption of administrative process.” Id. (quotation marks omitted). Such an extraordinary circumstance exists here,⁷ and we reach the merits of this interlocutory appeal under the judicial economy exception to the final judgment rule.

[¶ 10] DEP and Fox Island argue that the CCO is not judicially reviewable and that the court violated separation of powers principles by remanding the CCO to DEP with further instructions. FIWN argues that the court should not have dismissed its First Amendment retaliation claim. We examine these claims in turn.

A. Judicial Reviewability

[¶ 11] We review issues of statutory interpretation de novo. Carrier v. Sec'y of State, 2012 ME 142, ¶ 12, 60 A.3d 1241. Section 3456(2), which governs siting considerations for small-scale wind projects, provides: “Notwithstanding any other provision of law, [DEP's] certification pursuant to this section ... is not itself subject to judicial review as final agency action or otherwise.” The language is clear: DEP-issued certifications for small-scale wind projects are not judicially reviewable. Therefore, the first question we must resolve is whether the challenged DEP action, the CCO, was part of DEP's certification process, or a post-certification enforcement action subject to judicial review. See 5 M.R.S. § 11001 (2014) ; 38 M.R.S. § 347–A (2014).

[¶ 12] The statutory scheme for approving small-scale wind projects differentiates between the certification process itself and post-certification enforcement action. Title 35–A M.R.S. § 3456(1) sets out the certification process, stating: “A person may not construct or operate a wind energy development ... without first obtaining a certification from [DEP]” that the project meets certain noise, shadow, and setback requirements. The last sentence of this subsection states, “A person proposing a wind energy development subject to certification under this section ... may not begin construction until the certification is received.” Id. Subsection 3 specifies that enforcement is undertaken “[f]ollowing certification ... and during construction and operation.” Id. § 3456(3).

[¶ 13] In June 2009, DEP completed its certification process when it notified Fox Island that its project had been reviewed and approved. Section 3456(2) provides that DEP “shall issue its certification within 185 days of its acceptance of a request for certification....” Fox Island submitted its application on March 24, 2009, and DEP's approval on June 5, 2009, was well within the 185–day limit.

[¶ 14] Pursuant to its certification-granting authority, DEP imposed certain conditions on Fox Island's project. One of those conditions—condition #8—required Fox Island, within sixty days of a DEP noncompliance determination, to “submit, for [DEP] review and approval, a revised operation protocol that demonstrates that the project will be in compliance....” That the certification came with strings attached is not uncommon, and such practice is expressly authorized by section 3456.⁸

[¶ 15] Following certification of its project in June 2009, Fox Island began construction. A plain reading of section 3456 indicates that, at this point, the certification process that is a prerequisite to initiating construction had concluded. Fox Island completed construction and began operations in October 2009.

[¶ 16] Then, on November 23, 2010, DEP issued a formal noncompliance letter to Fox Island related to the noise infractions on July 17 and 18, 2010, and demanded that Fox Island submit a revised operation protocol pursuant to condition #8 of the certification. See 38 M.R.S. § 347–A(1)(B) (“Before initiating a civil...