The turbulence surrounding Connecticut’s wind energy generation industry is finally subsiding. After a process that began in 2011, the state now has regulations for the siting of wind energy projects, and the Connecticut Supreme Court removed the final obstacle to the construction of such projects in the state. On the surface, these seem like positive developments. Realistically, though, what do these two things mean for the future of wind energy projects in Connecticut? Proponents of grid-scale wind energy projects finally have a path forward, but it might not be a yellow-brick road.
In December of 2010, BNE Energy, Inc. submitted petitions to the Connecticut Siting Council (CSC) asking the CSC to approve by declaratory ruling BNE’s two grid-scale wind energy projects in Colebrook, Connecticut. These would be the first wind turbines of this scale in Connecticut. The CSC held hearings during the first half of 2011, and a local citizens’ advocacy group opposed to the projects, FairWindCT, participated extensively. After six months of deliberations, the CSC approved the projects. Concurrently with the CSC’s hearings, the General Assembly was working on legislation to require the CSC to adopt regulations covering the siting of wind energy projects, even though no other class of energy projects has specific siting regulations. The legislation became law in July of 2011, the same month that FairWindCT filed its court appeals of the CSC’s approvals.
Three years and four drafts later, the General Assembly’s Legislative Regulation Review Committee approved the CSC’s fourth draft of regulations for the siting of wind energy projects. The regulations address such issues as setbacks from property lines, shadow flicker, ice throw, blade shear, noise, and decommissioning of the facility at the end of its useful life. While having a regulatory scheme for grid-scale wind turbines is important, these regulations are not without their challenges. The two regulations that will likely pose the most significant issues for developers are those covering setbacks and noise.
The setback regulation requires a wind turbine to be sited a minimum of 1.5 times the height of the turbine from the nearest property line. In a highly developed state such as Connecticut, finding a property with enough space to incorporate setback of several hundred yards in all directions will be difficult. The noise regulation requires testing of maximum noise levels at the nearest receptor, meaning the nearest home or business, but it also requires testing of maximum cumulative noise levels at the property lines. This means that a project could violate the noise regulations if it exceeds maximum allowable noise levels at a property line even if the property it borders is a fifty-acre parcel with the nearest receptor being on the opposite side of that parcel from the wind turbines. The regulations contain a waiver provision for both setbacks and noise, but these being new, untested regulations, the relative ease or difficulty of receiving a waiver remains to be seen.
In September of this year, the Connecticut Supreme Court affirmed the CSC’s 2011 approvals of BNE’s projects. FairWindCT had challenged those approvals on a number of issues, but the Supreme Court ruled that the CSC acted properly and within its statutory powers. Three important takeaways from the case are: 1) wind turbines over one megawatt in size are within the CSC’s jurisdiction; 2) the CSC can approve petitions for declaratory ruling even if the project does not comply with state laws that are outside of CSC’s jurisdiction; and 3) imposition by the CSC of post-approval conditions, such as the need for a development and management plan, that go beyond the CSC’s statutory mandate do not necessarily render the CSC’s approval improper.
Given the foregoing, the future of wind energy generation in Connecticut is still up in the air. The state now has a defined regulatory path for siting these projects and, at least at this point, no further legal hurdles to overcome. But, will any developers be willing to take the first steps down that path? That is the multi-million-dollar question.
Matthew L. Stone is an associate in the Regulatory, Energy and Telecommunications Department, and the Environmental Law Department at Pullman & Comley, LLC. Reprinted with permission from the Winter 2014 Green Guide issue of the The Hartford Business Journal.