Martha A. Powers Trust v. Board of Environmental Protection
15 A.3d 1273
Me.2011Background
- Evergreen filed an expedited wind energy development permit application for the Oakfield Wind Project on April 7, 2009.
- Project: 51 MW, 34 turbines, located on Sam Drew Mountain and Oakfield Hills, with access roads, a collector line, substation, towers, and O&M building.
- Estimated cost around $125 million; First Wind Holdings, LLC pledged initial funding; HSH Nordbank noted potential debt financing.
- Decommissioning plan proposed: reserve $50,000 in years 1–7, reassess in year 7 and 15, with annual contributions years 8–15 to fund decommissioning.
- Sound level assessment claimed compliance with DEP limits; monitoring recommended to verify actual operation levels.
- Trust submitted comments questioning the sound assessment and health effects; DEP hired a noise control consultant and consulted MCDC, which found no evidence of adverse health effects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board must hold a public hearing. | Powers Trust contends a hearing was required. | Board had discretion and record was adequately developed. | Board did not abuse discretion; no hearing required. |
| Whether the Board’s finding on health effects is supported by substantial evidence. | Trust asserts potential health risks and questions sound analysis. | Record, including MCDC and expert review, supports no unreasonable health effects. | Finding supported by substantial evidence. |
| Whether the decommissioning plan satisfies licensing requirements. | Trust argues decommissioning funding and structure are insufficient. | Board adopted and refined a funded plan with reassessments and future contributions. | Substantial evidence supports the Board’s decommissioning finding. |
| Whether Evergreen has financial capacity to fund and complete the project. | Trust presented contrary financing concerns. | Record shows credible commitments from First Wind and likely debt financing from bank. | Substantial evidence supports Evergreen’s financial capacity. |
Key Cases Cited
- Concerned Citizens to Save Roxbury v. Bd. of Envtl. Prot., 2011 ME 39 (Me. 2011) (board discretion to hold hearings in expedited wind cases; de novo review)
- Friends of Lincoln Lakes v. Bd of Envtl. Prot., 2010 ME 18 (Me. 2010) (substantial evidence standard; agency findings require competent evidence)
- Concerned Citizens to Save Roxbury v. Bd. of Envtl. Prot., 2011 ME 39 (Me. 2011) (reiterates de novo review and hearing considerations)