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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.


Maine Supreme Court Dismisses Appeal of Rollins Wind Power Project

In the first case of its kind to reach the Maine Supreme Judicial Court, a lawsuit challenging a permit issued by the Maine Department of Environmental Protection for the construction of the Rollins Wind Power Project was dismissed on all counts on March 11, 2010.

The order affirmed a decision by the Board of Environmental Protection to deny an appeal filed by the Friends of Lincoln Lakes (“FOLL”) and several individuals challenging the Rollins Project permit.  The Board of Environmental Protection had unanimously rejected the FOLL appeal on the basis that the DEP had found that the Project would not have an undue adverse impact on the environment, specifically with respect to sound, health and wildlife. 

The Court noted that “FOLL essentially conceded at oral argument that the Board’s findings were supported by substantial evidence in the record.”

The Law Court also found that FOLL’s right to equal protection was not infringed by wind development laws that prevent the BEP from assuming original jurisdiction over applications for expedited wind energy projects and that allow for direct appeal of Department and Board decisions to the Maine Supreme Court.

The ruling was a victory for First Wind, which is developing the 60-megawatt Rollins Project in Lincoln, Maine, and surrounding towns.  Verrill Dana attorneys Juliet Browne, Scott Anderson, and Gordon Smith represented First Wind in the appeal. 

A copy of the decision, Friends of Lincoln Lakes v. Board of Environmental Protection, 2010 ME 18, — A.2d —, may be found here.


Energy Attorneys Honored as New England Super Lawyers, Rising Stars

Thirty-two lawyers from Verrill Dana, LLP have been selected by their peers for inclusion in the 2009 edition of New England Super Lawyers® & Rising Stars.

Several attorneys with Verrill Dana’s Energy Practice Group were commended, including:

  • Bill Harwood, Utilities.  Bill was also named a Super Lawyer in 2007 and 2008.
  • Mark Googins, Business and Corporate. Mark was also named a Super Lawyer in 2007 and 2008.
  • Jamie Kilbreth, Business Litigation.  Jamie was also named a Super Lawyer in 2007 and 2008.
  • Jeff Selser, Rising Star in Real Estate.  This is Jeff’s first Rising Star commendation.
  • Nora Healy, Rising Star in Utilities Law.  This is Nora’s second consecutive year as a Rising Star.
  • Kelly Boden, Rising Star in Environmental.  This is Kelly’s second consecutive year as a Rising Star.

The annual guide recognizes the top 5% of lawyers in Maine, Massachusetts, Vermont, New Hampshire, Rhode Island, and Connecticut as Super Lawyers.  Only the top 2.5% in each state are selected for the list of Rising Stars, which identifies top up-and-coming attorneys who are 40 years old or younger, or who have been practicing for 10 years or less.


Fifth Circuit: Oil Companies Subject to Legal Claim for Contributing to Global Warming

The Fifth Circuit Court of Appeals ruled yesterday that private plaintiffs have standing to sue oil companies under the nuisance, trespass, and negligence doctrines.  The claims were justiciable and did not constitute political questions, according to the court.

The plaintiffs in this putative class action are victims of Hurricane Katrina.  They allege that the companies’ actions encouraging greenhouse gas emissions has contributed to global warming, which led to conditions that are at least a partial cause of the ferocity of the 2005 hurricane that devastated the Gulf Coast.  The plaintiffs seek damages.

The court did dismiss other claims—including fraudulent misrepresentation, unjust enrichment, and civil conspiracy—on standing grounds.

The case is Comer v. Murphy Oil USA, and a PDF version of the decision is available here.


Kibby Wind Power Project Goes On-Line Today

The Kibby Wind Power Project, located along the western ridges of Kibby Mountain in Franklin County, Maine, goes on-line today. TransCanada’s Kibby Project is a 44-turbine, 132-megawatt wind development.

Under Juliet Browne’s direction, Verrill Dana’s Energy Practice Group obtained the licenses for the Kibby wind development from Maine’s Land Use Regulation Commission. The development was supported by several nonprofits, including Maine Audubon, the Natural Resources Council of Maine, and the Appalachian Mountain Club.

Juliet Browne, chair of the firm’s environmental law department, has managed the legal work for the first several wind projects in Maine, including Mars Hill, Stetson II, and Rollins. 


Katie Gray Attends Cap & Trade Seminar in Auburn

The Maine State Chamber of Commerce, in conjunction with the U.S. Chamber of Commerce, sponsored a presentation on proposed federal cap-and-trade legislation.  The presentation was held at the Hilton Garden Inn in Auburn, Maine.  Katie Gray, an Associate in Verrill Dana’s Energy Practice Group, attended, along with several other members of Maine’s legal, business, and political communities.

Ross Eisenberg, from the U.S. Chamber, argued that the proposed federal legislation would be extremely complicated and too costly for businesses, and that even a best-case scenario reduction in warming would be minimal.  In essence, the costs would far outweigh the benefits.  Climate initiatives must be arranged on a global scale, not piecemeal on a country-by-country basis, in order to be effective, the U.S. Chamber argues.  Dr. Margo Thorning, of the American Council for Capital Formation, outlined her statistical analysis arguing the same.

David Littell, a commissioner with the Maine Department of Environmental Protection, focused on the serious problems posed by global warming and what they mean for Maine.  He also pointed to the success of the RGGI program in Maine.

Some major corporations, including Nike and Apple, have abandoned their memberships on the U.S. Chamber’s board over the Chamber’s position on federal efforts to combat global warming.  Others, like Johnson & Johnson and GE, have stayed on.  At least three major utilities—Exelon, PG&E, and PNM Resources—have withdrawn their memberships.


N.H. and Mass. Generator Facilities Qualify for Maine Renewable Portfolio Standard, Says Maine PUC

In a pair of decisions issued September 1, 2009, the Maine PUC ruled that out-of-state generation facilities may be counted toward Maine’s renewable portfolio standard.

Chapter 311 of the PUC’s rules permits the Commission to certify generating facilities as eligible to satisfy Maine’s new renewable resource portfolio requirements.  Pursuant to that rule, the PUC certified the University of New Hampshire’s 7.9-MW combined heat and power plant, which is located in Durham, N.H. (Docket No. 2009-184).  The PUC also certified Richey Properties’ 600-kW wind turbine generator, located in Newburyport, Mass. (Docket No. 2009-197). 

For the PUC, the two requests “raise[d] the issue of whether behind-the-meter generation that is located outside of Maine (and therefore does not service Maine customers) is eligible to be used to satisfy Maine’s portfolio requirement.”  The PUC approved the requests, concluding that the facilities serve the needs of Maine customers that would otherwise be served by the New England market.  Therefore, the impact is the same as if the facilities sold energy into and purchased from the New England market.

UNH’s cogeneration plant has burned 89% landfill gas and 11% natural gas and diesel oil since May 2009.  Landfill gas is an eligible fuel under Maine’s renewable portfolio law.  Although the plant is a dual-fuel facility that uses natural gas and diesel, which are ineligible, the PUC explained that the statute does not exclude dual-fuel facilities and that such facilities are consistent with the standards because the “primary fuel is eligible.”  The order did not define “primary fuel” for these purposes.

Energy that Richey’s wind turbine generates is either used by Mark Richey Woodworking in its business operations in Newburyport or sold to National Grid’s Massachusetts Electric Co.  The turbine has been in operation since February 2009.


Second Circuit: Utilities May Be Sued for Global Warming "Injuries"

The Second Circuit Court of Appeals ruled today that the tort doctrine of public nuisance may be used to sue a power company for environmental injuries related to global warming—the question is justiciable, the land trusts have standing to sue based on future injury, and the Clean Air Act does not prevent a suit based upon the federal common law public nuisance doctrine.  Defendants also included TVA, Cinergy, Xcel Energy, and Southern Co.

The case is Connecticut v. American Electric Power Co., and the 140-page decision is available in PDF form here.

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