Concerned Citizens to Save Roxbury v. Board of Environmental Protection, 15 A.3d 1263

Background

CCSR appeals a Board of Environmental Protection decision approving permits for Record Hill Wind to construct a 50.6 MW wind facility in Roxbury.
CCSR challenges: (a) denial of its request for a public hearing, and (b) whether Record Hill satisfied licensing requirements on health effects from noise, financial capacity, and decommissioning funding.
Record Hill's project includes 22 turbines along ridgelines, access roads, transmission lines, a substation, towers, and an O&M building; it is an expedited wind energy development under the Wind Energy Act.
Record Hill submitted financing indications from CoBank and Northern Trust; decommissioning funding would begin with a plan to fund over the project’s life.
MCDC issued a health review suggesting no reliable evidence of significant adverse health effects from wind turbine noise; a Department noise consultant also found the assessment reasonable and low-frequency noise insubstantial.
The Board denied a public hearing, conducted an independent de novo review of the Commissioner’s decision, and ultimately affirmed licensing approvals with conditions on financial assurances and sound monitoring.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board properly denied a public hearing	CCSR argues mandatory hearing should occur when credible conflicting evidence exists.	Record Hill contends Board has discretion, not mandatory duty, to hold a hearing in expedited wind cases.	Board has discretion; no error in denying hearing.
Whether the Board properly reviewed the Commissioner’s decision de novo	CCSR asserts Board relied on Commissioner’s findings without independent review.	Board independently reviewed the record and supplemental evidence.	Board conducted independent de novo review and issues reviewed by Board.
Whether health effects from wind turbine noise were adequately addressed	CCSR contends health risks from noise were not adequately addressed and more restrictions were warranted.	Board relied on MCDC and a noise consultant supporting no unreasonable health effect.	Board’s health findings supported by substantial evidence; no further restrictions required.
Whether Record Hill had adequate financial capacity to develop the project	CCSR argues absence of solid financing assurances undermines capacity.	Record Hill provided bank financing indications and owner’s funds; record supports capacity.	Substantial evidence supports Board’s finding of financial capacity.
Whether decommissioning plan provisions satisfied licensing requirements	CCSR contends decommissioning funding could be insufficiently structured.	Board required early and reassessed funding, with ongoing adjustments; plan satisfies requirements.	Board’s decommissioning plan findings supported by substantial evidence; not abused.

Key Cases Cited

Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 989 A.2d 1128 (ME 2010) (substantial evidence standard; deference to agency findings)
FPL Energy Me. Hydro LLC v. Dep’t of Envtl. Prot., 926 A.2d 1197 (Me. 2007) (agency review where Board acts as fact-finder and decision maker)
Rudolph v. Golick, 8 A.3d 684 (ME 2010) (guidance on statutory/departmental procedural framework for appeals)