August 14, 2018
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Judge tosses challenge of order halting wind turbines

Gabor Degre | BDN
Gabor Degre | BDN
Turbines at the Pisgah Mountain wind project in Clifton.
Marina Villeneuve, The Associated Press

PORTLAND, Maine — A judge has tossed a legal challenge of Republican Gov. Paul LePage’s executive order halting wind turbine permits in parts of Maine, while leaving the door open to revisit the topic.

Superior Court Justice Andrew Horton said in his decision Friday that the governor has admitted that his own administration is not enforcing the executive order. But Horton dismissed the lawsuit because he said that environmental and renewable energy groups haven’t proven the order will harm any in-the-works wind turbine projects.

“Gov. LePage’s argument that these cases do not present a judiciable controversy rests in part on his contention that the executive order does not mean what it appears to say,” Horton wrote.

Two groups — the Conservation Law Foundation and Maine Renewable Energy Association — had challenged the constitutionality of LePage’s executive order issued in January, claiming it’s causing uncertainty in the wind industry.

Horton gave the two groups 30 days to prove the order could threaten a wind project being developed by its members.

LePage’s spokeswoman Julie Rabinowitz said the administration “appreciates” the dismissal, but declined further comment because of the potential for further litigation.

Conservation Law Foundation attorney Phelps Turner said the group is weighing its options, and said the judge’s decision shows that LePage’s executive order conflicts with state wind permitting law. Representatives of the Maine Renewable Energy Association didn’t immediately respond to requests for comment Monday.

“The judge dismissed the case because he found that we were not suffering any direct harm from the order, but the unconstitutional order is still subject to challenge by any wind power developer whose project application is stymied by the order,” Turner said.

At least one wind project is in the works. The state plans to allow a public hearing on a proposed small wind turbine in western Maine. No date is set yet.

LePage’s executive order says no wind turbine permits are to be issued until a new wind energy advisory commission reports on the impact of wind projects. The governor, who has called wind energy a “boutique energy source,” claims wind turbines have a negative impact on tourism, property values and avian migratory pathways.

Lawyers for LePage said his order hasn’t blocked wind projects and acknowledged that the governor’s own administration is ignoring the thrust of his order.

The judge in his Friday opinion said LePage is not “clarifying” the executive order to reflect its true intent.

Instead, the governor submitted a court affidavit that says the Department of Environmental Protection “intends to disregard the plain meaning of the sentence at issue and intends to act on wind turbine permits by the statutory deadline, whether or not the commission has issued its report.”

The commission is collecting public comment until Aug. 15, and court documents say its unpublicized 15 members include Governor’s Energy Office Director Steven McGrath.

Maine has the most wind turbines in New England, and its ambitious renewable energy goals and fast-tracked wind projects have unsettled some rural residents.

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