FOX ISLANDS WIND NEIGHBORS, et. al., Petitioners,
MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, et. al., Respondents.
ORDER ON RULE 80C PETITION
Before this Court are: 1) Rule 80C Petition filed by Fox Island Wind Neighbors (the "Petitioners" or the "Neighbors") seeking review the "Condition Compliance Order" (the "CCO") issued on June 30, 2011 by the Department of Environmental Protection (the "DEP"); and 2) a motion to dismiss the Neighbors' Petition on mootness grounds filed by Party-in-Interest, Fox Island Wind, LLC ("FIW").
On July 28, 2011, the Neighbors and various individual residents of Vinalhaven, Maine filed a Rule 80C Petition for review of the CCO issued on June 30, 2011 by the DEP, which approved a "Revised Operating Protocol" submitted by FIW in response to the DEP's determination that FIW violated 06-096 C.M.R. ch. 375, §10 (2001) while operating a small- scale wind energy project located on the island of Vinalhaven. In their Petition, the Neighbors asserted that the CCO was the product of political intervention, which undermined the judgment of the DEP's professional staff and consultants. (Pet. 19.) The Petition further argued that the CCO was in violation of statutory provisions requiring wind energy projects to be regulated to prevent excessive noise, in excess of statutory authority, unsupported by substantial evidence, arbitrary and capricious, and affected by abuse of discretion. (Pet. 21-22.)
This case has a complex procedural history and the Court has issued multiple orders. On March 20, 2012 the Court denied a Motion to Dismiss brought by FIW and the DEP who claimed that this Court lacked jurisdiction as the CCO at issue was "certification" would not be judicially reviewable by statute. 35-A M.R.S.A §3456(2). The Court found that because the CCO at issue was better characterized as "enforcement" --if for no other reason than the certification of this wind project occurred on June 5, 2009 and the complaints of violations of the noise rules arose over a year later after certification (on July 17 and 18, 2010). Moreover, the Court found that prior to the final agency action at issue, the DEP had included in the certification enforcement mechanisms by establishing operational and complaint protocols which would have to be followed if complaints were made and validated regarding noise levels after the turbines began spinning.
Nine days later, the DEP filed a Motion to Reconsider the order denying the motions to dismiss, adding a new argument not raised in the initial briefing, namely whether the Neighbors had standing to challenge the DEP's enforcement of violations of the CCO. The Court first noted that the DEP had previously conceded that if the CCO at issue constituted enforcement then the Court had jurisdiction to review the agency action but only if the dispute was between the Department and the developer. The Court rejected the DEP's argument that no Maine citizen who lives adjacent to a small-scale wind development has the right to seek judicial review of even post-certification actions of the Department, and the argument that the only remedy for abutters to wind projects would be to pursue and prevail in a common law claim for nuisance against the developer. The Court rejected the Respondents' reliance upon Great Hill Fill & Gravel v. Board of Environmental Protection, 641 A.2D 184 (Me. 1994) and relied instead upon the Law Court's decision in Friends of Lincoln Lakes v. Department of Environmental Protection, Maine Supreme Judicial Court, Mem. Docket No. BEP-10-554 (June 6, 2011), as well as general principles of standing in denying the motion to reconsider. Lindemann v. Comm 'n on Governmental Ethics and Election Practices, 2008 ME 187, 961 A.2d 538.
On April 13, 2012, the Neighbors filed an amended petition, which added two additional claims for relief under the United State Constitution and 42 U.S.C. 1983: Count III alleged that the CCO violated the Neighbors' right to petition the DEP protected by the First Amendment; and Count IV alleged that the CCO discriminated against the Neighbors in violation of the Fourteenth Amendment's Equal Protection Clause by depriving them of the right to be protected from excessive noise that is available to any other Maine resident in close proximity to a wind project. FIW and DEP then filed motions to dismiss the independent claims, which were granted by the Court on November 1, 2012. The Court found that the Neighbors had available to them a means to obtain direct judicial review of the agency action through the Maine Administrative Procedure Act, and that review under Rule 80C could provide adequate remedies for the Neighbors if they prevailed. The Court also noted that constitutional arguments could be made as part of the Rule 80C proceeding and issued a Consent Order addressing this issue and other matters on November 27, 2012. The consent order allowed the Neighbors to include their constitutional arguments in their Rule 80C brief on the merits pursuant to 5 M.R.S.A. § 11007(4)(C)(1). The parties proceeded to brief the merits of the Rule 80C proceeding, and oral argument was conducted on July 15, 2013. Just before oral argument, the Court met with counsel to the parties to suggest a judicially-assisted settlement conference with another Superior Court Justice.
On July 19, 2013, FIW moved this Court to dismiss the Neighbors' 80C Petition on mootness grounds. FIW argues that the Petition is now moot because of the DEP's May 7, 2013 findings that FIW is operating in compliance with the DEP's noise regulation as a result of FIW having installed serrated fins on its turbine blades and thereby having decreased noise by 2-4 dBA.
The parties agreed in late summer of 2013 to participate in multiple sessions of judicially-assisted settlement conferences, but the undersigned Justice was notified in November of 2013 that settlement efforts were unsuccessful. The Court then took the matter under advisement.
On March 24, 2009, FIW applied with the DEP to build and operate a small-scale wind energy development project on Vinalhaven, Maine. (Br. of Pet. 5.) On June 5, 2009, the DEP issued FIW a Certification pursuant to 35-A M.R.S.A. § 3456 approving the project. (Petitioners' Rule 80C Brief Appendix 10.) Condition No. 8 of the Certification provided:
If the compliance data indicates that, under most favorable conditions for sound propagation and maximum amplitude modulation, the proposed project is not in compliance with Department standards as described in Finding 3, within 60 days of a determination of non-compliance by the Department, the applicant shall submit, for review and approval, a revised operation protocol that demonstrates that the project will be in compliance at all the protected locations surrounding the development.
In other words, according to Condition No. 8, if FIW's turbines were to produce noise in excess of applicable standards, FIW would be required to implement a noise-reduction operation plan using a "revised operation protocol."
On November 30, 2009, the DEP approved the Operational Sound Measurement Compliance Protocol (OSMCP), which specified the conditions and procedures under which FIW would be required to measure sound and demonstrate compliance with the Certification. (Pet. App. 39.) The DEP additionally required that "[compliance testing . . . must be submitted to the Department following any noise-related complaints after the commencement of operations, with consideration for the required weather, operations and seasonal constraints." (Pet. App. 44.)
Soon after the project began operations, the Neighbors began complaining about noise generated by the turbines. The Neighbors hired an attorney and an acoustical consultant, who conducted sound measurements beginning in March 2010. (Br. of Pet. 10-12.) Starting at the end of April 2010, the Neighbors submitted numerous noise complaints to the DEP and requested that the DEP compel FIW to submit compliance assessment data as required in the November 2009 OSMCP. (Br. of Pet. 10-12.) Among these complaints were the Neighbors' complaints for the nights of July 17 and 18, 2010 alleging violations of the noise control rules.
On November 23, 2010, the DEP issued a formal non-compliance letter to FIW based on one specific complaint the Neighbors had previously filed relating to noise infractions on July 17 and 18, 2010. (Pet. App. 59.) The letter found FIW to have exceeded the 45 dBA nighttime sound limit and instructed FIW to submit within 60 days a "Revised Operation Protocol, " as required by Condition No. 8 of the Certification. (Pet. App. 60.) The Revised Operation Protocol was required to "demonstrate  that the development will be in compliance at all protected locations surrounding the development at all times . . . ." Id.
On April 11, 2011, FIW submitted a Revised Operation Protocol, which committed to reduce the sound level from the FIW turbines only when the meteorological conditions are identical to the conditions observed on July 17 and 18, 2010—the wind direction is between 200° and 250°, or blowing in the south southwesterly direction. (Pet. App. 75.) However, the DEP determined that FIW's submission was inadequate, and drafted a counterproposal, which set forth provisions that the DEP staff, working with Assistant Attorney General Amy Mills and Warren Brown, believed were necessary to ensure compliance of future operations with the Noise Rule. This counterproposal consisted of a CCO, but also included "Appendix A, " which was modeled after another small-scale wind project that the DEP was working on at Pisgah Mountain. (Pet. App. 103.) FIW objected to the inclusion of Appendix A.
On or about June 20, 2011, Patricia Aho took over as Acting Commissioner of the DEP. Ms. Aho began working at the DEP as Deputy Commissioner in early 2011 directly after leaving employment as a lobbyist for Pierce Atwood, the same firm representing FIW. (Br. of Pet. 20.) Ten days after becoming Acting Commissioner, on June 30, 2011, Commissioner Aho, in addition to limiting noise-reduction requirements to the exact meteorological conditions of July 17 and 18, 2010,  chose to issue the CCO without Appendix A.
STANDARD OF REVIEW
Under 5 M.R.S.A. § 11007(4)(C), the Superior Court may reverse or modify an agency decision if the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of ...