Local-control issue remains contentious 

A proposed law on wind energy projects has been specifically crafted to streamline their review while still preserving local communities’ ability to regulate them, according to state officials.

But whether the measure actually achieves that goal remains a matter of much debate.

“People locally are not convinced that there are clearly defined lines of local control,” said state Rep. William “Smitty” Pignatelli, D-Lenox. “A lot of the people I’ve spoken to are not necessarily opposed to wind, but want to have local control over it, and until that comfort level is there, support for the bill will be rare.”

The proposed Wind Energy Siting Reform Act is based on a bill proposed by Gov. Deval Patrick, who has pushed hard for its passage as a key part of his effort to bolster the state’s renewable energy portfolio. The measure passed both the House and Senate last year but was left to expire last year by procedural legislative rules.

The measure has been revived this year, and after two public hearings at both ends of the state, it was clear that opponents remained concerned that the bill would subvert local towns’ ability to control the projects across the state.

Officials with the Massachusetts Office of Energy and Environmental Affairs maintain that the proposed bill is designed to preserve local control, even to the extent of allowing the towns to seek funding from developers to conduct studies
needed in evaluating the proposals.

According to Steven Clarke, assistant secretary for energy and environmental affairs, the bill cements a town’s ability to approve or deny a project, clarifies a town’s ability to secure ongoing revenue from a project while operating, and requires that communities provide opportunity for public input on any proposal.

The bill would require towns with sufficient wind resources to form a wind energy permitting board with members from various other town boards. If there aren’t enough people, a town’s planning board could perform that function. This would be the only board a wind project developer would have to deal with in order to obtain any required town permits or waivers.

It also creates a single state energy facilities siting board for any state permits required.

But Nathaniel Karns, executive director of the Berkshire Regional Planning Commission, stands by his assertion that contradictory language in the proposal muddies the purported clarity of delivering control over proposed wind projects to local municipalities.

He noted that the wording would allow a project that has been denied by the local town’s wind permitting board to appeal the decision to the state-level energy siting board. And if the local board approves a project with conditions, those conditions can also be appealed to the state-level siting board.

In addition, Karns noted, if a town had already passed a law banning wind turbines, the law would still require any town with sufficient wind resources to form a wind energy permitting board and consider any legitimately proposed wind farms.

Clarke explained the bill does not allow a proposal denied at the local level to advance to the state energy siting board. It could, however, appeal the decision through the court system. But it would no longer fall under the expedited process set up by the bill – it would have to work its way through the courts like any other commercial project whose permits had been denied.

And any existing town laws would have to be taken into account, including an already-enacted ban, according to the proposed legislation, Clarke noted.

If the bill passes and is implemented, he said, the permitting process for a wind project would be roughly 18 months. Two Berkshire County projects – Berkshire Wind on Brodie Mountain and Hoosac Wind in Florida – were stuck in permitting and litigation for more than 10 years, he noted.

“We want to reduce that burden on municipalities by making the process more efficient, but still allow plenty of feedback,” Clarke said. “But it is very clear early on [in the bill] that the local wind permitting board is the first line of entry. It is really geared to empower the town and at the end of the day, the town will make the final decision.”

The bill is under consideration by the Legislature’s Joint Committee on Telecom, Utilities and Energy, co-chaired by Sen. Benjamin Downing.

The deadline for committee action on the bill is the second week in March 2012.

Downing said he has not reached any conclusion yet “on where I come down on that part of the bill.” But he noted that the local control question is the most contentious aspect of the bill.

“If the bill moves forward,” he said, “there are significant changes that have to be made.”