Friends of Lincoln Lakes v. Board of Environmental Protection, 2010 ME 18 (Me. 3/11/2010)

• Decision Date: 11 March 2010
• Docket Number: Docket: BEP-09-467.
• Citation: 2010 ME 18
• Parties: FRIENDS OF LINCOLN LAKES et al., v. BOARD OF ENVIRONMENTAL PROTECTION et al.
• Court: Maine Supreme Court

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2010 ME 18

FRIENDS OF LINCOLN LAKES et al., v. BOARD OF ENVIRONMENTAL PROTECTION et al.

Docket: BEP-09-467.

Supreme Judicial Court of Maine.

Argued: February 10, 2010.

Decided: March 11, 2010.

Lynne Williams, Esq. (orally) Bar Harbor ME, Attorney for the Friends of Lincoln Lakes.

Janet T. Mills, Attorney General Margaret Bensinger, Asst. Atty. Gen. (orally) Amy Mills, Asst. Atty. Gen. Augusta, Maine, Attorneys for the Board of Environmental Protection.

Juliet T. Browne, Esq. (orally) Scott D. Anderson, Esq. Gordon R. Smith, Esq. Verrill Dana, LLP Portland, Maine4, Attorneys for Evergreen Wind Power III, LLC.

Sean Mahoney, Esq. Conservation Law Foundation Portland, Maine, Attorney for amicus curiae Conservation Law Foundation.

Rufus E. Brown, Esq. Brown & Burke Portland, Maine, Attorney for amicus curiae Concerned Citizens to Save Roxbury.

Panel: SAUFLEY, CJ., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

ALEXANDER, J.

[¶ 1] The Friends of Lincoln Lakes, a Maine nonprofit corporation, and certain individuals (collectively "FOLL") appeal,¹ pursuant to 38 M.R.S. § 346(4) (2009), from a decision of the Board of Environmental Protection (Board) which affirmed an order of the Department of Environmental Protection (Department) approving the issuance of permits to Evergreen Wind Power III, LLC, to construct a wind energy generation facility. FOLL argues that: (1) the Board's findings that Evergreen met applicable licensing criteria with respect to sound level limits, impact on public health, and minimized impact on wildlife habitats are unsupported by substantial evidence in the record; and (2) 38 M.R.S. §§ 344(2-A)(A)(1), 346(4) (2009), precluding the Board from assuming jurisdiction of Evergreen's permit applications and allowing direct appeal from the Board to this Court, violate the Equal Protection Clauses of the United States and Maine Constitutions. We affirm the decision of the Board.

I. CASE HISTORY

[¶ 2] In October 2008, Evergreen Wind Power III, LLC, filed applications with the Department for permits, pursuant to the Site Location of Development Law, 38 M.R.S. §§ 481-490 (2008) (the Site Law), and the Natural Resources Protection Act, 38 M.R.S. §§ 480-A to 480-GG (2008) (the NRPA), to construct the Rollins Wind Project in the Towns of Lincoln, Lee, Winn, Burlington, and Mattawamkeag.² The Rollins Project is a proposed sixty-megawatt wind energy generation facility, including forty wind turbines, each 389 feet high, to be located atop northern and southern ridges on Rollins Mountain. The Rollins Project is an "expedited wind energy development," which is statutorily defined to mean "a grid-scale wind energy development that is proposed for location within an expedited permitting area." 35-A M.R.S. § 3451(4) (2009).

[¶ 3] The Evergreen application included a "Sound Level Assessment," completed by an engineering company, that is intended to predict sound levels generated by operation of the Rollins Project and to evaluate compliance with sound level limits established in the Department rules. The study was conducted using an acoustic model that employed the CADNA/A software program.³ The model treated the wind turbines as point sources of sound, as opposed to line sources.

[¶ 4] Based on predictions of sound attenuation traveling from the turbines to five "protected locations" in the vicinity of the Rollins Project deemed to have the greatest potential for exceeding applicable sound level limits, the sound level assessment concluded that the hourly sound levels generated at these five protected locations, taking into consideration an additional five dBA and other conservative factors, would not exceed the maximum nighttime noise limit of forty-five dBA established in Department rules, 2 C.M.R. 06 096 375-7 §10(C)(1)(a)(v) (2001), for so-called "quiet locations."⁴

[¶ 5] An independent peer reviewer retained by the Department initially expressed some reservations about the model used for the sound assessment, but after meeting with Evergreen representatives, he ultimately concluded that the sound assessment was "essentially reasonable and technically correct according to standard engineering practices." He stated that the five protected location sites tested for sound levels were appropriate in number and location and that it was reasonable to estimate that the Rollins Project would typically produce thirty-nine to forty-five dBA sound levels at the location sites, though he noted that actual noise levels could vary based on a variety of factors.

[¶ 6] The consultant observed that the acoustic model using CADNA/A software did not, however, account for "potential excessive amplitude modulation," which could result in short duration repetitive (SDR) sounds at certain of the protected locations under certain conditions. Because SDR sounds could occur, which would invoke a five dBA penalty, pursuant to 2 C.M.R. 06 096 375-8 § 10(C)(1)(e) (2001), and cause the Rollins Project to become non-compliant at certain protected locations, Evergreen submitted, at the consultant's suggestion, a compliance assessment plan to ensure that the forty-five dBA limit is met under all operating conditions.

[¶ 7] Evergreen's application also included studies evaluating the effect of the Rollins Project on wildlife habitats in areas surrounding the proposed site. The application acknowledged that, according to the Maine Department of Inland Fisheries and Wildlife (MDIFW), eight bald eagle nests had been mapped within five miles of the proposed site, including one nest approximately one mile from the proposed site, but none within the proposed project area. Evergreen asserted in its application that the Rollins Project would not pose a significant threat to birds, bats, or raptors (including eagles). MDIFW expressed concerns about the impact of the Rollins Project on bird, bat, and raptor mortality. MDIFW also acknowledged the potential negative impact on the eagles nesting one mile from the proposed site, given the proximity of that nest to the project site and the eagles' use of ridgelines to catch updrafts for soaring. MDIFW suggested that, in response to this potential for adverse impacts, Evergreen be required to conduct post-construction mortality studies to determine the project's impacts on these species and to determine ways to offset negative impacts.

[¶ 8] After Evergreen submitted its application, the Department denied multiple requests from the public for a public hearing and requests that the Board assume jurisdiction of the matter, citing 38 M.R.S. § 344(2-A)(A)(1), which statutorily precludes the Commissioner from requesting that the Board assume jurisdiction over expedited wind energy development applications. The Department did hold a public meeting on February 11, 2009, to allow interested parties to comment on the application and submit information. FOLL participated at this meeting, submitting verbal and written comments, studies, and articles disputing the appropriateness of the model used to assess predicted sound levels; raising concerns about the public health impact from wind turbine noise due to infrasound (sound less than twenty Hz, generally considered the normal limit of human hearing) and low-frequency sound less than 250 Hz; and asserting that the proposed project would have an adverse impact on wildlife.⁵

[¶ 9] The Department solicited comments from numerous state and federal agencies on the issues raised in the application and at the public meeting, including opinions from the Maine Centers for Disease Control (MCDC) concerning the impact of wind turbine noise on public health. The MCDC concluded, based on its review of various studies and guidelines, that the noise level expected to be generated by the Rollins Project would not result in hearing loss or sleep disturbance and that it had found no evidence of adverse health effects resulting from the noise levels and low-frequency and infrasound vibrations predicted, other than occasional annoyance.

[¶ 10] The Department approved Evergreen's application in April 2009 in a fifty-one-page order, contingent on a multitude of conditions including Evergreen's implementation of its sound level compliance assessment plan and its post-construction monitoring of area wildlife habitats in consultation with the Department and MDIFW. The Department's order specified that if post-construction monitoring indicates that the project does not comply with sound level limits, Evergreen will be required to submit a revised protocol showing that sound level limits will be met. Similarly, if post-construction monitoring studies reveal that the project is having an unreasonable adverse impact on wildlife, Evergreen will be required to "implement appropriate and practical measures for avoiding and/or minimizing continued impacts."

[¶ 11] FOLL appealed the Department's decision to the Board. The Board denied FOLL's request for a public hearing. Taking no additional evidence, but making findings regarding the issues FOLL raised concerning noise and wildlife impacts from the Rollins Project, the Board issued a decision in August 2009 affirming the Department's approval of Evergreen's application. The Board found that Evergreen demonstrated that the Rollins Project can be constructed in compliance with applicable noise level limits, provided that it accounts for potential SDR sounds through the implementation of its post-construction compliance assessment methodology. The Board also found that Evergreen had demonstrated that the Rollins Project "will not unreasonably harm bald eagles or other wildlife" in accordance with Department rules and with the NRPA, 38 M.R.S. § 480-D(3). The Board based this finding in large part on Evergreen's application and MDIFW's review. The Board did not expressly find that noise levels from the project will not adversely affect public health, but recited evidence submitted by the independent consultant and...