The Devil In The Details of Local Law

The Devil In The Details of Local Law

by: Cindy Kudlik Posted on: December 08, 2013

Editor’s Note: A background story of a region fighting corporate industrial wind farming in New Hampshire. We learn about conditions that bring historically divided people together. In the process, the complexities and politics of sustainable energy are touched upon.

A year ago residents of Grafton, Danbury and Alexandria NH were shocked to learn that a Spanish-based company, Iberdrola Renewables, intended to construct an enormous industrial wind turbine complex along the beloved ridgelines of Melvin, Forbes and Tinkham mountains. There were immediate concerns raised by citizens about the noise (high and low frequency), shadow flicker, blinking red lights at night, destruction of wildlife habitats and migration paths, damage to the aquifers, damage to roads that weren’t built to handle hundreds of heavy vehicles, an end to our quiet rural way of life, and yes, also for property values. How would our inexperienced selectmen sit down with savvy lawyers from this ethically questionable company to hash out an agreement—be it a pilot or straight taxation—that wouldn’t leave taxpayers further burdened by uninvited industrialization of our unzoned towns?

The company sent representatives to “answer our questions” and “address our concerns.” What they really did in these informational meetings was attempt to suppress questions or comments from anyone who had a clue and could ask informed questions, such as members of New Hampshire Wind Watch, and either sidestep, downplay the truth or outright lie. The company reps told us things like, “there are no health effects humans suffer from living too close to wind turbines.” But then we heard of a lawsuit in Herkimer County, NY, where over 60 residents are suing Iberdrola Renewables for the headaches, dizziness, loss of appetite, sleeplessness, etc. they have experienced since the company erected 37 industrial wind turbines near their homes. “There’s no evidence of decreased property values from industrial turbines being sited near or within the viewshed,” said the representative.

Then we read of people near the Hardscrabble and Hoosac wind projects in MA who can’t sell their homes. The company refused to offer property value guarantees in Hammond, NY, claiming that they don’t ruin wells or drinking water during construction. And we learned of Mario Rampino on Groton Hollow Road (the access road for the Groton Wind complex) whose well water turned black. The company offered, but hasn’t yet paid, $5,000 to replace his well. The list of lies, half-truths and backhanded spin goes on and on. A Procedural Order and Notice of Possible Suspension of Certificate of Site and Facility was issued for the company’s Groton Wind complex on November 4, 2013. See here for a map of all the industrial wind projects in the area. The New Hampshire Site Evaluation Committee sited violations and safety issues. When questioned about the NH State Fire Marshall’s request that the Site Evaluation Committee suspend operations at Groton Wind due to a lack of proper fire suppression systems, project manager Ed Cherien said he didn’t believe the Fire Marshall has that kind of authority.

Many people contacted local, state and federal elected officials looking for help in keeping this and other industrial energy projects, such as the Hydro-Quebec proposed Northern Pass [See Read the Dirt coverage of Northern Pass], from destroying our natural resources and asked them to uphold their oaths of office to protect our health, safety and welfare. New Hampshire Senators Shaheen and Ayotte along with Congresswomen Shea-Porter and Kuster were asked to work toward putting an end to the Production Tax Credit. The Federal Renewable Electricity Production Tax Credit (PTC) is a per-kilowatt-hour tax credit for electricity generated by qualified energy resources, such as wind. This year the PTC was handed over to the IRS, who changed the rules from requiring facilities to be up and operational to qualify to now only needing to have invested 5% of the total project cost invested to qualify. Several state Senators and Representatives like Jeanie Forrester, Skip Reilly, Larry Rappaport, Lester Bradley, Jeff Woodburn and Herb Vadney have listened to their constituents and worked hard to pass a moratorium against nonessential energy projects and/or change existing statutes to take into account the voice of the people and intelligently plan for New Hampshire’s energy and energy infrastructure. These attempts were largely thwarted by those who choose to believe lobbyists rather than do their own homework. In Grafton, the resident state representative, Catherine Mulholland, not only couldn’t be bothered to respond to her constituents via email, phone or USPS mail, but refused an invitation from the Select Board to hear their concerns that she properly represent the town regarding industrial wind complexes. Several towns had warrant articles on the ballot in 2013 — voters overwhelmingly opposed development of industrial wind development on our ridgelines.

A small but determined group of Grafton residents took the bold step of contacting the Community Environmental Legal Defense Fund (CELDF) and learned about taking the argument out of the regulatory language that seems to always lose. Grafton wanted to frame the conversation around constitutional rights. Gail Darrell, a CELDF organizer, came to our town numerous times to teach a mini Democracy School and help us draft the language of Grafton’s Right to a Sustainable Energy Future and Community Self-Government Ordinance.

We learned that Article 10 of New Hampshire’s constitution declares that “government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.” This article paves the way for this ordinance in that as much as we reached out to every level of elected official, we were often told that legally there was nothing they or we could do to ensure our “natural, essential, and inherent rights – among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness” (NH state constitution, Article 2).

The ordinance passed at town election March 12, 2013 by an initial count of 255 for and 252 against. A recount was asked for and the results of that netted two more votes for the ordinance (257-252).

Understanding this ordinance was for many of us just as Ben Sarro of WNTK radio put it, “like reading the Magna Carta.” For many years the federal government along with the government-controlled media have redefined many words in the English language to their advantage or the advantage of the wealthy and corporate interests that fund their campaigns. The ordinance redefines “sustainable energy” because we disagree with the government’s loose interpretation of the words “sustainable” and “renewable.” We don’t believe that flooding acres and acres of tribal forestland is sustainable or renewable. We don’t believe that clear-cutting acres and acres of forest and blasting granite ridgelines and pouring tons of concrete is sustainable or renewable. More broadly, we don’t believe that pumping thousands of gallons of water out of our aquifer and into plastic bottles is sustainable or renewable. Mostly, we don’t believe that current laws or lawmakers (for the most part) give a damn about sustaining or renewing anything but their own power and elitism.

Talking about the ordinance opened the door for average citizens and hunters to discuss how vital the local ecosystem is to their daily lives. Hunters spoke about the wildlife and wildlife corridors they depend on. We live in an area where there is no water utility so we all depend on our wells or the clean water running from the mountains to our brooks and rivers. We talked about the wildlife many of us appreciate and their dependence on the habitats and migration corridors. Even the gardeners and hikers who enjoy munching on wild berries discussed protecting bees, bats, birds and other creatures whose pollination is essential. Some felt that we were putting the rights of nature above the rights of the humans in town, but that is not the case. We’ve elevated the resident’s rights to protect the rights of the ecosystem they depend on above the rights of corporations that destroy it for profit.

On September 10, 2013 Ed Cherien, representing Iberdrola Renewables, addressed the Alexandria New Hampshire Select Board and announced he’d be back in a month to reveal a revised project proposal. A resident in attendance said Cherien couldn’t be trusted as a year ago he said if the towns didn’t want turbines, the company would not pursue projects. Cherien responded that the company is still addressing concerns and encouraged residents to look at the proposed project’s merits.

In November Cherien returned to Danbury and Alexandria to say “We listened to you.” They revised the project based on the concern for the scope of its size, reducing the turbine number from 37 to 23, although the height increased from 454 feet to 492 feet. No turbines, roads or buildings will be within the town of Grafton.

In Danbury on October 23, 2013 when asked why Grafton was no longer part of the project, Mr. Cherien responded that when looking at how to reduce the project they decided dropping one of the three ridgelines was the easiest way and Melvin Mountain is the steepest of the three and has more wetlands to deal with. He also stated that the wind data on Tinkerton and Forbes is better. The revision also reduced the number of roads needed and there was an issue with two landowners in Grafton dropping out of their leases, which would make access tougher. Cherien was reminded in October 2013 that he had told all of the towns a year ago that if they didn’t want it, this project wouldn’t be built. He responded that there is support from a “silent majority” who are afraid to come to meetings and voice their opinion. (They’re also apparently afraid to vote.)

Then in Danbury on October 23, he claimed there was support beyond those who voted and announced the company would file even without the select boards or general public’s acceptance. When pushed with the same question again in Alexandria on November 5, he restated that the company would not move forward without support. Cherien said he feels the company does have support, even if it’s not a majority. And again in response to why the project abandoned Grafton he gave similar responses as to wetlands and winds.

He never spoke of Grafton’s Rights Based Ordinance.

Some choose to believe that the wetlands and the winds are the real reason Iberdrola removed its proposal for Grafton. But the proof is in the pudding. Forbes Mountain in Alexandria is nearly 6 feet taller than Melvin Mountain in Grafton. Surely 6 feet doesn’t change the wind capacity that much. Alexandria and Grafton both voted in opposition to the project and Danbury had nothing on the ballot about it at all. If they were really listening, they would eliminate both Grafton and Alexandria and just move forward in Danbury.

The only logical conclusions are that Grafton’s Rights Based Ordinance prevailed and when Iberdrola listened, the message received was that Grafton has an ordinance that elevates the rights of the community and its ecosystems over corporate constitutional protections. The only logical conclusion is that this ordinance protected Grafton the same way a similar ordinance has protected the town of Nottingham, NH from water extraction for over 6 years. CELDF is doing good work throughout the country – there are over 160 Rights Based Ordinances in the US to date. We are taking the argument out of the greed-spun language of regulations and not only giving the people a seat at the table, but reminding everyone that WE OWN THE TABLE and we choose who gets a seat at it.

Photo: Public Domain

3 Responses to “The Devil In The Details of Local Law”

I just want to correct an error that's in this piece, but not the one I submitted. The procedural order referenced in the third paragraph is correctly stated as being from the NH Site Evaluation Committee. The request made by the Fire Marshall in that same paragraph was also to the Site Evaluation Committee, not the Securities and Exchange Commission.
by: Cindy Kudlikon: Sunday 8th of December 2013
Thank you for an accurate and well written description of them events of the past year in our three towns! Excellent job!
by: Jennifer Tuthillon: Sunday 8th of December 2013
Excellent piece! Let's hope more towns will follow Grafton's lead and protect their rights too.
by: Michelle Sanbornon: Monday 9th of December 2013