Maine appeals reversal of DEP chief’s wind farm decision 

The Maine Department of Environmental Protection is appealing last month’s ruling by a judge who determined that DEP Commissioner Patricia Aho erred in a decision involving noise complaints about a wind farm on Vinalhaven.

In her ruling on March 10, Superior Court Justice Michaela Murphy nullified a decision Aho made in June 2011 that appeared to benefit Fox Island Wind, which owns the wind farm. Instead of requiring detailed monitoring of complaints, Aho’s decision allowed the company to address only specific conditions on the night of July 17-18, 2011, when a noise violation occurred.

Murphy also addressed the issue of bias in her ruling, because Fox Island Wind was represented by Pierce Atwood, the law firm where Aho worked before she became DEP commissioner. Murphy wrote that Aho’s action did not violate the narrow definition of bias under Maine law, but she criticized the commissioner for her involvement in the case.

“While this case might not present the ‘extraordinary circumstances’ which must exist for a court to find ‘bias’ as that term has been defined by the Law Court,” Murphy wrote, “Commissioner Aho’s continuing participation in deciding upon operational and complaint protocols could be viewed as antithetical to the common notions of impartiality which Maine citizens understandably expect from decision-makers in Maine agencies.”

In a two-page appeal filed Friday with the Maine Supreme Judicial Court and provided Wednesday by DEP spokeswoman Jessamine Logan, the Attorney General’s Office challenges Murphy’s decision on four points:

n Whether the DEP action was even subject to judicial review

n Whether third parties have standing to challenge the terms of a DEP enforcement action on the grounds that it is insufficiently aggressive

n Whether the court had authority, under separation of powers, to review the DEP enforcement action and order the DEP to take additional action

n Whether the action that was challenged was arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence in the record or an error of law

The appeal does not address Murphy’s statement on the issue of bias.

A full appeal will be filed before it is heard by the supreme court, Logan said.

Aho has faced criticism for pursuing and securing regulatory action that benefited clients of Pierce Atwood, where she was a longtime lobbyist.

In a series published in June, the Portland Press Herald/Maine Sunday Telegram detailed how Aho had stifled many of the laws and programs she had been paid to defeat as a lobbyist for the oil, chemical, waste management, drug and real estate development industries. It also examined how the DEP missed a key deadline in the relicensing of the Flagstaff Dam in Eustis, to the benefit of the dam’s owner, which also was represented by Pierce Atwood.

The Vinalhaven case stems from noise complaints about Fox Island Wind’s $15 million wind farm, which started operating in 2009. The three 1.5-megawatt turbines were popular with many Vinalhaven residents, initially reducing electricity costs for the island by 10 percent, though rates have since increased.

But many residents have complained that the turbines are excessively noisy.

Fox Island Wind has since made changes to its turbines designed to reduce noise complaints.