FairwindCT, Inc. v. Connecticut Siting Council
99 A.3d 1038
Conn.2014Background
- BNE Energy petitioned the Connecticut Siting Council (Council) for declaratory rulings to approve two projects (three 1.6 MW turbines each) in Colebrook without a certificate under §16-50k(a); plaintiffs FairwindCT and local residents intervened under §22a-19 and received party status.
- The Council held hearings, approved both petitions with multiple conditions (stormwater/erosion plans, post-construction noise monitoring, development & management plan, lower hub height for one site), and relied in part on agency comment letters and some materials filed under seal.
- Plaintiffs appealed to the trial court challenging Council jurisdiction, authority to impose conditions, treatment of state noise law, the Council’s hub-height decision and evidentiary procedure, and alleged deprivation of fundamental fairness.
- The trial court dismissed the appeals; the Supreme Court reviewed de novo statutory interpretation issues and for substantial evidence on factual determinations.
- The Supreme Court affirmed: (1) Council had jurisdiction because wind turbines are „electric generating facilities" within the siting statutes; (2) plaintiffs lacked standing to challenge conditions per se but could challenge whether the Council’s substantive approval was supported by substantial evidence; (3) Council could consider (but was not required to enforce) state noise regulations and could approve despite noncompliance with laws outside the siting act; (4) the hub‑height change and other procedural contested practices did not require reversal because Council findings were supported by substantial evidence and any procedural errors were harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Council jurisdiction under §16-50k(a): are wind turbines "facilities" using "fuel"? | Wind is not "fuel" so turbines are not "facilities" under §16-50i(a)(3); Council lacks jurisdiction. | Definition should include any electric generating facility; statutory context and legislative history show turbines fall within Council jurisdiction. | Held: turbines are "electric generating facilities" within §16-50i(a)(3); Council has jurisdiction. |
| Authority to impose conditions on declaratory rulings; standing to challenge conditions | Conditions improperly allow post-approval compliance; plaintiffs challenge conditions and Council authority. | Plaintiffs lack standing to challenge conditions themselves; Council may condition declaratory rulings similar to certificates. | Held: plaintiffs lacked standing to attack conditions per se but had standing to argue approvals lacked substantial evidentiary support; Council properly made substantive findings and conditions were not a post hoc substitute for required findings. |
| Whether Council had to apply/enforce state noise regulations when approving petitions | Council was required to measure at property lines per DEEP regs and required to enforce noise law; approval without such compliance is unlawful. | Council may consider other state laws as it deems appropriate under §16-50x(a) but is not required to enforce them; it may approve despite noncompliance. | Held: Council may consider state noise law but is not required to apply or enforce it when ruling on declaratory petitions; approval despite noncompliance is permissible. |
| Lowering hub heights; was decision supported by substantial evidence and properly admitted? | Late introduction of hub‑height feasibility evidence prejudiced plaintiffs and shorter hubs increase property-line noise; decision not supported by record. | Evidence (product literature, Jiminy Peak example, BNE testimony) supported feasibility and reduced visual impact; any late presentation was harmless. | Held: Council’s decision to require 80 m hubs was supported by substantial evidence; any late evidence introduction was harmless because it would not likely change outcome. |
| Procedural fairness (cross-examination of DEEP analyst, cumulative impacts, sealed records, continuances) | Council denied rights to cross-examine agency commenter, limited cumulative-impact proof, overbroad sealing and denied continuances, depriving fundamental fairness. | Council exercised discretion under hearing rules; withheld testimony was peripheral; sealed materials and schedule balancing were justified; no harmful prejudice shown. | Held: Even assuming some procedural errors, plaintiffs failed to show material prejudice; Council proceedings were fundamentally fair and any errors were harmless. |
Key Cases Cited
- Wheelabrator Lisbon, Inc. v. Department of Public Utility Control, 283 Conn. 672 (deference to agency statutory interpretations and limits)
- Finley v. Inland Wetlands Commission, 289 Conn. 12 (conditions indicating lack of substantive compliance can show insufficient evidence)
- Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57 (judicial review limited to substantial evidence and deference to agency fact‑finding)
- Grimes v. Conservation Commission, 243 Conn. 266 (common-law right to fundamental fairness in administrative hearings)