Wind farm opponents seeking clarification on federal court ruling

Feel recent decision could impact projects in Western Maryland

Megan Miller
Cumberland Times-News

CUMBERLAND — A recent federal court decision has some Western Maryland wind farm critics pushing state and local officials for increased regulation.

On Friday, a letter signed by the four members of the District 1 legislative delegation was sent to Maryland Attorney General Douglas Gansler, seeking a formal opinion on the responsibility of state agencies “as it relates to the protection of the state’s endangered species.”

The letter, sent at the urging of former state senator and Allegany County resident John Bambacus, asks the attorney general to consider whether Maryland state law prohibits a corporation from building wind turbines if the project could potentially harm endangered species.

The question centers on two issues: the first, a recent federal court decision placing restrictions on a West Virginia wind farm because of concerns it could harm an endangered bat; the second, Maryland legislation that went into effect July 1, 2007, to allow proposed wind power projects to bypass an extensive permit review process if the projects have a maximum capacity of no more than 70 megawatts.

In early December, a federal judge halted the construction of additional turbines at Beech Ridge Wind Farm in Greenbrier County, W.Va., because of concerns that the federally endangered Indiana bat could be harmed by the project. The case reached a settlement that allowed construction to move forward, but will limit the facility to about 20 fewer turbines than originally proposed and restrict operation times to daylight hours during the summer months, when bats tend to be active at night.

D.J. Schubert, a biologist with a group opposing the Beech Ridge project, called the settlement a victory for those who feel green energy companies “have to be held to some standard in terms of ensuring their projects do not harm and threaten the environment,” according to the Associated Press.

“A standard has been set now, and we certainly hope the renewable energy industry takes heed,” Schubert said.

Bambacus and some other Western Maryland residents say they believe the case did set a standard, one they want Maryland to follow by toughening up the Public Service Commission’s review process for wind farm permits.

“Prior to the 2007 legislation, Maryland had one of the strongest and most respected programs in the U.S.,” Bambacus said. “None of us could argue that the process itself was faulty. Now there’s virtually no process at all.”

Previously, wind power developers in Maryland were required to secure a permit known as a Certificate of Public Convenience and Necessity. Developers had to go through an extensive review process with the PSC, including conducting environmental review studies and making their case for a permit in formal administrative law proceedings. In those proceedings, other parties, including government agencies, environmental groups, and individuals, could file their own testimony and cross-examine other parties involved.

But since 2007, wind developers can apply for an exemption from the certificate requirement. Developers still have to notify a long list of state and federal agencies, including the Department of Natural Resources and the U.S. Fish and Wildlife Service, about proposed projects, but the exemption process cuts down on things like project review time and impact studies, as well as the public’s ability to weigh in on an application.

Both Sen. George Edwards and Delegate Wendell Beitzel filed bills in the 2009 legislative session to repeal all or part of the exemption law, but the measures failed.

Despite the fast-track legislation, and the PSC’s approval of several wind project permits, no wind farms have actually been erected in Maryland to date. But Bambacus said he thinks the 2007 legislation leaves a lot of unanswered questions about the potential impact of such facilities in the state.

For example, wind farms in Western Maryland could also have an effect on the Indiana bat. Dan Feller, western region biologist with the DNR, said Indiana bats haven’t been confirmed in Garrett County since the mid-1990s, but one was found in Allegany County as recently as the late 2000s. Feller said major hibernation spots for the bat are located less than 20 miles from Maryland in West Virginia.

“We know they’re around, and they’re very rare,” Feller said.

Bambacus called the letter to the attorney general “my last gasp” before turning to the courts for an answer.

Kimberly Connaughton, an Oakland attorney and Garrett County resident concerned over proposed wind power development projects at Backbone Mountain near her home, said she, too, sees the Beech Ridge decision as opening up new legal options for pursuing stricter regulation.

Connaughton, along with her husband, Stephan Moylan, and neighbor Eric Tribbey, sent an open letter to the Garrett County Commission at the end of January, requesting it to rescind or put on hold all pending and granted permits related to wind project construction in the county.

“At this point, we’re trying to get the local executive branch to do something,” Connaughton said. “The last thing we want to get involved in is a federal lawsuit. That’s not what we want to be doing, but we don’t want the highest, longest ridge in Maryland to be ruined forever.”

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