The permitting process for solar sites used to be a long and time-consuming process until the Vermont Department of Public Services hit upon a brilliant scheme for cutting their workload precisely in half: They listen to only one side.
Last year, Next Generation Solar Farm proposed a massive, industrial-size, 20-acre solar installation in an agricultural/residential neighborhood on Field Days Road in New Haven. This despite being in violation of New Haven zoning ordinances, despite being seven times bigger than the town plan allows, despite a unanimous vote against it by the New Haven selectboard, and despite the discovery that this Class 2 Wetland was one of the few remaining habitats for bobolinks, a species being driven out of Addison County by development on open fields. The town entered into the proceedings as an intervenor, as did we and several of our neighbors.
A January hearing in front of a Public Service Board (PSB) hearing officer was set. Working with Cindy Hill, the New Haven town attorney, the intervenors spent hundreds of hours and tens of thousands of dollars assembling evidence to present to the PSB about the impact this project would have on our town. They included concerns about the destruction of the bobolink habitat, Green Mountain Power’s grid map showing that the New Haven lines were already overloaded, the proven negative effect on property values, the subsequent decrease of property taxes to the town, and the devastating aesthetic impact to the town, especially when viewed from Field Days and Route 17.
We were all shocked when, in November, two months before the hearing, we were served with an agreement between the developer and the state, signed by Department of Public Services attorney Jeannie Oliver. They had been meeting in secret and drafting a clandestine agreement in favor of the developer, even while our evidence was still being submitted. Everything had been conducted behind closed doors. No one, not even the town’s attorney, had been aware of these meetings until the deal was announced.
The deal is devastating to New Haven. It gives the developer everything he asked for provided he makes a few cosmetic concessions. None of New Haven’s concerns are addressed. Perhaps worst of all is the shameful way in which the DPS dealt with the bobolink habitat destruction.
Bobolinks and their nests had been discovered by John Gobeille, a Fish and Wildlife Department biologist. Gobeille recommended that 40 acres surrounding the array be permanently set aside for bobolinks, a species in decline because of diminishing habitat. But secret negotiations resulted in an agreement signed by the developer’s attorney, Joslyn Wilschek, and Agency of Natural Resources (ANR) attorney Donald Einhorn requiring a 50-foot-wide strip of land around the panels “shall remain undisturbed.”
In an Oct. 29, 2015, interview with the Independent, Gobeille noted that bobolinks won’t nest any closer than 300 feet from trees, and they regard solar panels on pillars as trees, thus confirming that the 50-foot strip won’t protect the birds.
But it was a massive money-saver for the developer since DPS interprets “undisturbed” to mean all landscaping must be banned in the strip because trees would disturb the bobolinks! Clearly, the buffer is a ploy devised not to save habitat, but to save money — a lot of money — for the developer. Think about the twisted logic. Twenty acres of solar panels won’t endanger the habitat but planting trees will. For the first time in history, an environmental problem actually puts money in the developer’s pocket. Lawyers 1, birds zero.
Sadly, we have since learned that secret deals with the ANR are the norm. And once the ANR enters into a deal, its contractual obligation to developers overrides its duty to protect habitat and wildlife, making it the developer’s implicit partner, with the authority to permanently seal records to prevent discovery of its actions.
The secret agreement meant the January hearing was now very different than the intervenors had envisioned. Instead of reaching a compromise with the town, the one-sided agreement had already been made, and the only thing left to do was to give it a thumbs up or thumbs down. Instead of working with the state, the intervenors faced a legal team made up by the developer’s attorney, Joslyn Wilschek, and Jeannie Oliver, the attorney for the DPS, ready to defend the secret agreement she had signed. We felt outnumbered, outmaneuvered and outgunned.
But then something incredible happened.
We tried to call Jeannie Oliver to the stand. Wilschek suddenly looked furious and Oliver looked panic-stricken. The DPS objected strenuously, even summoning their boss into the hearing to explain why DPS integrity would suffer if one of their attorneys was forced to testify. Finally, the hearing officer asked what information we were looking for. The question? Very simple. “Did you ever consider our evidence?”
That question still hasn’t been answered. Every attempt to discover whether the time, money and efforts of New Haven played any role in the crafting of the secret agreement have been stonewalled. But I think we can all infer the answer.
On March 24, 2016, Chris Recchia, commissioner of the Public Service Department, testified before the Senate Finance Subcommittee that the PSB was changing how they make deals with developers. From now on, no agreement would be issued prior to hearings, and all intervenor testimony would be considered. On April 6, in a hearing before the House Fish, Wildlife and Water Resources Committee, PSD Deputy Commissioner Jonathan Copans confirmed that those changes resulted from the New Haven hearing.
We have no idea if the PSB will approve this project or not. If it does, the testimony of their commissioner that their system was flawed, and by implication unfair, will be the basis of our appeal.
We support renewable energy and think that solar power has an important role in our state. But it can’t be imposed from above, ignoring any concerns that affected residents might have. Secret deals, closed doors, and phalanxes of devious lawyers should not be tolerated in Vermont. The solar industry is creating unnecessary enemies. It’s time to shine a little sunlight on its too-cozy relationships in Montpelier.
Kevin Commins and Edward Rybka of New Haven