Maine Supreme Court Affirms Broad Review Powers for BEP in Clearing Way for Wind Project
The Maine Supreme Judicial Court (the Law Court) recently issued an important decision that confirms the broad authority of the Maine Board of Environmental Protection (BEP) to review decisions of the Commissioner of the Maine Department of Environmental Protection (DEP). The decision, Passadumkeag Mountain Friends et al. v. Board of Environmental Protection, upheld approval of the Passadumkeag Wind Project.
The case began when Passadumkeag Windpark (PW) sought approval from DEP for the development of a wind farm on property owned by Penobscot Forest (PF), on Passadumkeag Ridge in Grand Falls Township. The project features fourteen 140-meter high turbines, access roads, a crane path, a meteorological tower, and electrical collection infrastructure, including an electrical substation, an operations and maintenance building, and a 17-mile transmission line.
The DEP Commissioner initially denied PW’s application to develop the project, finding that the construction on Passadumkeag Ridge would dramatically change the undeveloped view of Passadumkeag Mountain from Saponac Pond, a scenic resource. PW then appealed to BEP, which reversed the Commissioner’s decision and granted approval for the project. BEP based its decision on the fact that the scenic consultants hired by DEP and PW agreed that the project would “not have an unreasonable adverse impact on the scenic character of Saponac Pond.”
After BEP issued its decision, two opponents of the project appealed to the Law Court. In their appeal, the opponents raised two primary arguments: (1) that the Commissioner’s decision was the operative decision for purposes of the appeal (or, stated another way, that BEP should have deferred to DEP’s factual findings), and (2) that there was insufficient evidence to support the BEP’s decision.
In their first argument, the opponents argued that the language of 38 M.R.S. § 341-D required BEP to defer to the Commissioner’s factual findings. They pointed out that Section 341-D(4)(D), which applies specifically to license or permit decisions regarding an expedited wind permit, does not expressly provide that BEP is not bound by the Commissioner’s findings (as opposed to Section 341-D(4)(A), the section governing other permit and license appeals, which does contain such an express provision). The Law Court rejected this argument, noting that DEP’s own rules for processing appeals provided that BEP “is not bound by the Commissioner’s findings of fact or conclusions of law.” The Court also cited previous case law in which it had held that BEP could engage in an independent review of the record. Thus, the case confirms that even when reviewing wind projects, the BEP is not bound by the Commissioner’s factual findings.
The Court next concluded that there was indeed sufficient evidence to support BEP’s decision. The Court noted specifically that BEP was free to make its own credibility determinations with respect to conflicting evidence before it, and that BEP’s findings regarding the project’s visual impact were supported by evidence that Saponac Pond is lightly used, the surrounding area is developed, and that the project would not have an unreasonable adverse impact on the viewshed of the pond. Again, this confirms the BEP’s broad authority to assess the weight of the evidence in reviewing a DEP Commissioner’s decision.
On the whole, this case shows that the BEP has broad authority to review DEP Commissioner’s decisions regarding permits for wind and other types of projects and that courts will give strong deference to BEP’s conclusions. If you have further questions about the implications of this case, please contact Brian Rayback (207-791-1188 or brayback@pierceatwood.com).