Saving the Gulf of Maine by simply Standing

In Huber v. BPL, I challenged the state decision to let the University site its offshore wind test center off Monhegan's Lobster Cove. Against the strenuous opposition of the State and University of Maine, Judge Jeffrey Hjelm ruled that   Ron Huber indeed posessed the lawful standing and right as party to bring his case against the DeepCwind siting decision.

From:  Knox Superior Court
CIVIL ACTION Docket No. AP-10-2   ORDER ON APPEAL.       Link to the complete decision
Decision filed June 27, 2011

Ronald C. Huber,
Plaintiff.
v.
Maine Department of Conservation
Bureau of Parks and Lands,
Defendant

Pursuant to 5 M.R.S. §§ 11001—11008 and M.R.Civ.P. 80C, plaintiff Ronald C. Huber appeals from a decision issued by the Bureau of Parks and Lands, Department of Conservation  (Department), acting under the authority of 12 M.R.S. § 1868 (2010), identifying a site approximately two miles south and seaward of Monhegan Island as one of three offshore wind energy test areas and as the Maine Offshore Wind Energy Research Center. Huber’s appeal is opposed by the Department and by The University of Maine System, which appears here as an intervenor based upon its role as the lead member of DeepCwind Consortium. The Consortium, a public-private partnership that has already secured federal funding for the project, intends to apply for a permit in order to develop the Monhegan site.
 
For the reasons that follow, the court concludes that Huber has standing to appeal the Department’s decision, because the statutory characterization of the agency action must be seen to allow him to pursue a challenge even at this early stage of the prospective development. The court concludes, however, that the Department’s decision is supported by the evidence and is not otherwise unlawful.

------snip------

Standing and Party Status
The court will address Huber’s standing first because the existence of standing is a threshold issue and a predicate to the consideration of the merits of his appeal.
A. Standing
As applied to state court proceedings in Maine, the notion of standing is prudential and rests on the expectation that the parties who are "best suited to raise a particular claim" are those who should be entitled to promote or oppose that claim in court. R00p v. BeUast, 2007 ME 32, jl 7, 915 A.2d 966, 968 (citation and internal punctuation omitted). Therefore, "Maine courts are only open to those who meet this basic requirement." Lindemann v. C0mm’n on Governmental Ethics and Election Practices, 2008 ME 187, jl 8, 961 A.2d 538, 541 (citation and internal punctuation omitted).

7 The petitioner objects to the assignment of a "‘Low Quality’ viewshed rating" for the Monhegan site. The court construes this as a reference to the Department’s assessment of a "low" level of concern about the effect of the test area on the Monhegan viewshed. R. 80.

Page 8

As a general matter, the determination of standing is not subject to a specific formula. Roop, 2007 ME 32, p7, 915 A.2d at 968. However, in appeals from agency action, the right to seek review is governed by statute. Lindemann, 2008 ME 187, p 9, 961 A.2d at 542. The Legislature has characterized an administrative identification of an "offshore wind energy test area" as "final agency action." See 12 M.R.S. § 1686(4). The course of Huber’s appeal is therefore governed by the provisions of 5 M.R.S. § 11001 et seq. which provides the exclusive method for judicial review of "final agency action." Lingley v. Maine Workman's Compensation Bd 2003, A.2d 327, 330. Huber’s standing to obtain judicial review of the Department’s decision therefore depends on whether he has standing under these procedural statutes.

As described in his brief on appeal, Huber’s involvement with the Penobscot Bay area, including Monhegan Island, is long—standing. He notes that he has workedsince 1993 to protect the environment and the wild inhabitants of Penobscot Bay, motivated by a sense of spiritual obligation. He refers to his involvement in litigation from 1994 through 1996 as head of a non-governmental organization and related to construction on coastal Ducktrap Mountain in Northport. He asserts that in the mid-1990’s, he participated in the DEP’s oil tanker and oil port rules task force, which was involved in the development of rules to protect marine life from oil spills. Huber states that he was involved in additional DEP proceedings in 1998 and 2006 because of a proposed development’s potential harm to aquatic environment, ecology and scenic resources. In 2005 and 2006, he headed a citizens’ group that worked with the DEP on matters relating to the environmental effects of cement dust piles.

In addition to his history of environmental advocacy, Huber writes that he has a specific connection to Monhegan Island, which he visits and enjoys while pursuing his faith—based stewardship of the entire Penobscot Bay region. While on Monhegan Island, Huber uses the pedestrian trail to get to Lobster Cove, where he appreciates the "complex and unspoiled vista" of the gulf of Maine. He is one of many ornithologists who travel from all over the world to observe the birds and other wildlife on Monhegan Island. See also R. 65.

Pursuant to section 11001(1), "any person who is aggrieved by final agency action shall be entitled to judicial review thereof in the Superior Court in the manner provided by this subchapter? The record must therefore establish that Huber has been "aggrieved" in a way that is sufficient to give him standing to pursue this appeal. Further, Huber also must show that he was a party during the underlying administrative proceeding. See, e. g., Friends 0f Lincoln Lakes

Page 9

v. Town of Lincoln, 2010 ME 78,1111, 2 A.3d 284, 288; Lindemann, 2008 ME 187,j] 17 n. 9, 961 A.2d at 543-44; Hammond Lumber C0. v. Fin. Auth. ofMe., 521 A.2d 283, 286 n.5 (Me. 1987). Here, the court first considers whether the record shows that Huber has party status from the agency level, and it next addresses the sufficiency of his alleged injury as an element of standing.

(1) Party status
The Law Court has "interpreted the term party broadly so as to mean any participant in the proceedings who is aggrieved by the action or inaction of the zoning board of appeals." Norris Family Assocs., LLC v. Town ofPhippsburg, 2005 ME 102, il 16, 879 A.2d 1007, 1012 (emphasis in original; citation and internal punctuation omitted).8 See also In re Lappie, 377 A.2d 441, 443 (Me. 1977) (". . .the legislative rationale is that one who is adversely affected by the entry of an administrative order, whether a formal party to the administrative proceeding or A not, is more likely to be aware of the details of the administrative proceeding than are members of the public generally. Such persons are more likely to seek judicial review to assure that the administrative body acts consistently with the standards prescribed by the statute."). The Court has recognized that administrative proceedings are conducted less formally than judicial proceedings, and so “an appellant need not have formally appeared as a party as long as it participated throughout the process." Lincoln Lakes, 2010 ME 78, {1 12, 2 A.3d at 288. Thus, to qualify as a party, the person’s participation in the administrative process may be "formal or informa1." Norris Family Assocs., 2005 ME 102, 11 16, 879 A.2d at 1013 (citation and internal punctuation omitted).

Here, the Department suggests that Huber attended one of its public meetings.9 (Br. of Resp. at 13.) This is a sufficient acknowledgement to support this element of Huber’s standing claim.

8 Cases such as Norris Family Associates that address appeals from municipal boards include discussions of the concept of “party status." That principle has the same purpose as it carries in the context of appeals pursued under the Administrative Procedure Act, and so the court considers the former cases in analyzing this part of the standing issue in this action.

9 The University argues that the record does not reveal any participation by Huber in the  administrative proceeding. Because the Department takes a contrary position, the court decides the issue favorably to Huber.

Page 10

Beyond this suggestion that Huber was a participant in the agency’s process, the record also reveals that concerns generally echoing those that Huber advances here were raised at the Rockport public meeting held in September 2009. R. 132-37.10   Several written comments, which are not attributed to named persons, mirror Huber’s arguments about the effect of the test area on Monhegan’s unique scenic assets. R. 272-73. One letter in particular focuses on the visual impact of wind energy development on the southern end of Monhegan Island, which is the location of Lobster Cove — a prime focus of Huber’s claims here. R. 288.

This demonstrates that Huber apparently attended a public meeting and that during the course of the administrative process, the concerns he raises here were brought to the agency’s attention. The court finds that this combination of circumstances is a sufficient basis on which toview Huber as a party participant.

(2) Particularized injury

To complete a demonstration that he has standing, Huber must also show that the agency’s action has caused him particularized injury —- "that is, if the agency action operated prejudicially and directly upon the party’s property, pecuniary or personal r ghts." Nelson v.Bayroot, LLC, 2008 ME 91,j]10, 953 A.2d 378, 382. See also 5 M.R.S. § 8002(4) ("‘Final agency action’ means a decision by an agency which affects the legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency ."‘). This requires consideration of whether Huber has suffered a legally recognized injury and whether any such injury is a particularized one.

First, Huber contends that he has sustained damage because of the prospects of development to a site that holds particular aesthetic and religious meaning to him.“ The University argues that Huber has not been injured by the mere designation of a location as an  offshore wind energy test area and as the Maine Offshore Wind Energy Research Center. No  actual development has occurred yet in the designated offshore wind energy test area and 10. The record does not reveal who was present at that hearing, R. 130, or at the October 2009 meeting held on Monhegan Island itself, R. 162-64. Huber was not among those who received public notice by mail of the Monhegan Island meeting. R. 266-71.

11. Huber also claims that his injury encompasses changes to ocean currents and resulting damage to an animal population over which he claims to exercise a faith—based stewardship. The record, however, does not demonstrate a factual basis for this type of alleged injury.

Page 11

research center, and none will occur absent a permit issued under 38 M.R.S. § 480-HH. Until the Department issues a permit, the locations at issue will not change, and Huber’s interests in those  locations are unaffected in fact.

But for the provisions of section 1868(4), the University’s analysis might well carry the day. An injury sufficient to confer standing on a claimant must be more than abstract. Nelson, 2008 ME 91, 11 10, 953 A.2d at 382. And the harm claimed by Huber is presently little more than that. However, in section l868(4), the Legislature has deemed that “[t]he identification of an offshore wind energy test area or areas under subsection 1 or subsection 3 constitutes final agency action." This statute has significance in two ways. First, because the Legislature has established that the type of administrative determination at issue here is "final agency action," it has also established that this type of action "affects the legal rights, duties or privileges of specific persons. . ." because that is the very definition of "final agency action." This syllogism therefore demonstrates that despite the absence of any actual physical development - and even though the state has not even issued a permit that would authorize such development, the Legislature has deemed that the very designation of an offshore wind energy test area results in an injury sufficient to meet the standard that is part of the criterion of "final agency action."12

The second consequence of section 1868(4) is that because the type of action taken thus far by Department is deemed to be “final agency action ," if Huber or others similarly situated to him were precluded from seeking judicial review, he (and they) would be permanently barred from doing so. Huber is now deemed to have been injured by the mere identification of a location as a test area, because the Legislature has declared that such an identification is "final agency action," meaning that by definition it has affected ‘his rights. lf, as the University argues, Huber has no appellate recourse based on that agency action, he would be left without a remedy notwithstanding that legally acknowledged injury

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12.  One of the University’s arguments challenging Huber’s standing is that he has not demonstrated that his religious interests would be affected by the Department’s actions. The court need not and does not reach this issue for two reasons. First, as is discussed in the text, the statutory characterization of the Department’s action as "fina1 agency action" supports the notion that that action causes harm to a claimant. Second, harm to aesthetic interests, if particularized, is a sufficient foundation to establish standing. Fitzgerald, 385 A.2d, 189, 196-97 (Me. 1978).

Therefore, even without regard to Huber’s contention that the state action affects his religious interests, the action’s impact on his aesthetic interests is a proper basis to grant him standing.
Page 12

Thus, because of the effect of section 1868(4), the court concludes that Huber has
sustained a legally cognizable injury. The next question is whether that injury is a particularized
one.

An injury is "particularized" if it is "distinct from any experienced by the public at large and must be more than an abstract injury." Id. This standard applies to claims based on an alleged injury to public rights, including rights associated with public places. See Friends of  Lincoln Lakes, 2010 ME 78, jj 14, 2 A.3d at 289; Fitzgerald v. Baxter State Park Auth., 385 A.2dat 196-97.

In the context of this case, the court draws guidance from the Law Court’s analysis of the nature of a "particularized injury" as discussed in Nergaard v. Town of Westport Island, 2009 ME 56, 973 A.2d 735. There, the Court rejected a claim of standing by two people who were among more than 1,600 residents who would drive past a challenged development. The Court held that their injury would not be particularized because of the large number of people who would be similarly affected. ld., jj 20, 973 A.2d at 741. The Nergaard Court distinguished that universe of affected people from the one examined in Fitzgerald. In the latter case, standing was conferred on a group of five people who used Baxter State Park and who sought to challenge agency action affecting their aesthetic interests in the park. Because of the small size of that affected group of “actual users," the Court held that they were not members of the "general public" and that the harm they alleged in fact was "particularized." 385 A.2d at 196-97, discussed in Nergaard, 2009 ME 56 p 21, 973 A.2d at 741.

Like the Fitzgerald plaintiffs, Huber’s injury is distinct from that suffered by the public at large because he is an actual user of Monhegan Island, particularly Lobster Cove, which is the area from which the wind energy research test site will be visible and which holds particular aesthetic and spiritual significance for him. The record therefore demonstrates that the agency action at issue here has injured Huber and that his injury is particularized. When those conclusions are combined with his status as a party to the administrative proceedings, his demonstration of standing is complete. The court now addresses the merits of his appeal from that final agency action.


B. Merits of the Huber’s claims on appeal

Page 13
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End of Excerpt from
CIVIL ACTION Docket No. AP-10-2   ORDER ON APPEAL.

Ocean Energy Institute opens as debate grows on ocean windfarms' climate-changing impacts.

Rockland. To the skirling strains of a bagpiper in regalia, a cheerful crowd tramped in and out of the refurbished 4th floor of the Van Baalen building on Tuesday afternoon, where a grand opening and open house offered by the new Ocean Energy Institute resounded with lively discussions of how many kilowatts, megawatts and even terawatts of energy might be stripped from the Gulf of Maine's ocean winds. Ocean Energy Institute managing director Robert West and  founder Matt Simmons were on hand fielding questions.  Listen to a six minute interview with West.


But even as the volume rose to a dull roar, and black-clad staff efficiently guided and catered to the wants of the many guests, something was conspicuously missing from the discourse.

 For there was scarcely  a word spoken on the effect that the 24/7 removal of all those billions of watts of energy from the Gulf of Maine's energy environment by offshore wind mills would have on the marine ecology and thus the fishing & tourism economy of the Gulf. 

An invitation-only reception Tuesday morning had brought 120 people together with Institute founder Matt Simmons, Governor Baldacci, Speaker Hannah Pingree, and staffers from Maine's congressional delegation. Here again, jobs, power and prestige were the topics of discussion; the Gulf of Maine itself was again reduced to a magic cornucopia whose energy could be exploited without concern for the natural ecosystems being de-energized.

In the race by energy companies to cash on  lavish grants and  subsidies being offered to ocean wind startups by American and Canadian governments, some fear the negative effects of this newest extractive industry are being swept under the rug.

This despite the potential  risks to Maine's lobster and herring industries and to  coastal trouism that could stem from the powerful impacts of large ocean windfarms on the winds and currents of the Gulf of Maine. A tiny slowing of the Eastern Maine Coastal Current, for example, could delay larval lobsters from being transported to their juvenile nurseries off Penobscot Bay at the same time as their plankton prey species hatch there leading to local year class failures of the important crustacean. As lobsters are captured in these waters, they would not be replaced, leading to a steady decline. The constant upwelling of cold water in summer and warm water in winter by the pressure differential ocean windfarms could blanket the coast and nearshore waters with year-round  tourist-repelling fog banks.

Yet while American and Canadian wind energy researchers and entrepreneurs  seem to discount their industrial's own increasingly discernible  role in climate change, across the Atlantic  increasingly loud alarms are being sounded by their European counterparts, who for the past decade have  documented first hand the effect of ocean windfarms on the environment off their shores. They don't like what they are seeing. 

Chief among scientists raising concerns is  Dr. Goran  Brostrøm , senior researcher at the  Norwegian Meteorological Institute.  In " Windmills at sea will affect the climate"  Brostrøm  warned : 

"The atmosphere does not contain an unlimited amount of wind energy. Windmills tap the atmosphere's energy, and this may have consequences for climate and ocean circulation. These  issues are not taken sufficiently into account in the current discussion about the placement of wind farms offshore....It is also likely that many windfarms combined would provide a stronger effect on climate and marine environment than wind farms will provide if they are studied separately."  

"These studies must be done now," Brostrøm wrote, "before wind farms are built. It must be considered what are positive and negative effects on the environment, and we need to describe these effects as detailed as we are able to today."  

He said that ocean windmills have "a powerful impact on the local ocean currents, and probably on the amount of phytoplankton that can grow in the ocean. Windmill parks will affect the wind field over an area much larger than the parks themselves, and the effects on the ocean will also apply to an area much larger than the size of the park."

See Brostrøm 's research paper "On the influence of large wind farms on the upper ocean circulation." (pdf)  for more details. Brostrøm 's findings were echoed by Dutch researchers Gustave Corten and Arno J. Brand  of  ECN Wind Energy.  In a recent report, "Resource Decrease by Large Scale Wind Farming", Corten and Brand similarly note that  when windfarms add  "roughness" to the otherwise smooth sea surface, a significant fraction of wind energy is lost by the natural environment: 

"Wind resource estimates, especially offshore, are based on the situation without the presence of the planned  farms. We show that the wind resource will drop by 5-14% when we account for roughness increase that will occur when large farms are installed offshore."

Penobscot Bay Watch director Ron Huber, who  monitors midcoast Maine nearshore and offshore wind industry efforts, said he is disappointed that the head of the US offshore windfarming R&D effort, University of Maine's professor Habib Dagher, has opted to ignore the European wind researchers warnings. At the May 20th Maine Windpower Forum in Rockport Maine, Dagher brushed off questions on this topic, stating: "The scientific community doesn't take that very seriously."  

"Matt Simmons's Ocean Energy Institute and Dr Dagher's  DeepCwind Consortium both need to keep a brake on their ambitions," Huber said,  "Honest, open public calculation of  the possible negatives of offshore windfarms needs to be presented concurrently with the positives. To do otherwise risks imperiling Maine's fisheries and coastal communities through failed communication."

Huber has unsure if the Ocean Energy Institute will do so - Simmons' business plan for his Institute includes budding off a for-profit holding company to acquire and consolidate existing renewable energy companies; an entity that would tend to accelerate the pace of offshore wind exploitation here by sheer political power, not slow it down. 

But, "having met briefly with OEI's managing director Robert West, I am cautiously optimistic they will be open to full disclosure of potential impacts of projects the Ocean Energy Institute takes on." Huber said.  Huber is also hopeful that  DeepCwind's Habib Dagher will accept the solidifying scientific consensus that ocean wind energy extraction affects the weather of the surrounding environment.  "Dr. Dagher is an intelligent man, too" Huber said.  "I think he'll come around."

"In any event, my lawsuit contesting DeepCWind's license to operate off Monhgan Island has, I think, focused his attention. 

"When carrots don't work, sometimes you must use a stick." he said.

Maine's ocean windpower law. The March 2010 legislative hearing &three worksessions AUDIO

At the March 11, 18, 23 &24 2010 meetings of the Maine Legislature's Energy Utilities and Technology Committee, legislators, Maine fishermen, windmill proponents, opponents, regulators, scientists and others worked out  LD 1810 An Act To Implement the Recommendations of the Governor's Ocean Energy Task Force. The bill directs commercial windfarming interests to federal waters ten miles and further offshore.

3/11/10  Public Hearing on LD 1810. AUDIO

* Introduction 7 minutes 

* Senator Hobbins Sponsor of LD 1810 6 min
* Representative Leila Percy, Co chair Marine Resources Comm 2 min
* Beth Nagusky MDEP Energy Office 12 min
* Beth Nagusky questioned 18 min
* Senator Kevin Raye 8 min
* Rep Stacey Fitts, Co sponsor 12 min
* Rep Seth Berry 4:17 min
* George Lapointe. DMR  6 min
* George Lapointe Q & A  5 min
* Chuck Digate, Neptune Wind 
* Chuck Digate, Neptune Q&A
* Bob Baynes. Lobsterman  2 min
* Shawn Mahoney, CLF  7 min
* John Ferland, Ocean Renewable Power Co  9 min
* Lance Burton of Castine 3 min
* Bill Staby, Resolute Energy  4min
* J. Monroe, Blue Water Dynamos  11 min
* Ron Huber, Penobscot Bay Watch 7 min
* Bob Moore, Dead River Oil, 11 min
* Ned Bulmer, Maine Energy Marketing Assn  9 min
* Carol Lee ex head of Bangor Hydro 7min 
* Caroll Lee, Q&A 6 min
* John Pierce of Harspwell 4 min
* Chris O'Neill, Saco 10 min  

3/18/10 Work session #1 on LD 1810. AUDIO                                             

* Introduction to the Worksession 4min 

* MDEP's Beth Nagusky describes proposed changes to Bill Part A 17 minutes

* MDEP's Nagusky Q&A session 11 minutes

* Patrice Farrell, Maine Lobstermen's Association 3 & 1/2 min

* MDEP's Beth Nagusky describes proposed changes to Part B of LD 1811

* Suzanne Sayre 2 min

* John Ferland Ocean Renewable Energy Corp

* Dianne Messer, advocate, Liberty Maine

* Chris O'Neill, Friends of Maine Mountains

* Todd Rousette (sp?) Preti Flaherty lawfirm

* MDEP's Beth Nagusky describes more changes to Part B

* MDEPs Beth Nagusky on changes to Part C

* MDEP's Beth Nagusky on changes to Part D 

3/23/10 Work session#2 on LD 1810 AUDIO

Introduction 90 seconds 

Dr Habib Dagher, University of Maine 10 minutes

Dr. Habib Dagher, Q&A 8 minutes

MDEP's Beth Nagusky Q&A 1 11 minutes

Beth Nagusky Q&A 2 12 minutes

Maine Lobstermens Association's Patrice McCarron 6 minutes

Beth Nagusky Q&A 4 9 minutes

Beth Nagusky Q&A 5 17 minutes

Beth Nagusky Q&A 6 to end of work session 19 minutes

3/24/10 Work session#3 on LD 1810. AUDIO

Part 1 14 minutes Review of  amendments

Part 2 13 min BEP & Municipalities

Part 3 7 min Preamble amendments. Criteria for projects

Part 4 12 min Ocean wind green standard offer 

Part 5 8 min  pricing and funding
Part 6 16 min Where's PUC. What jobs would come

Part 7 13 min Pilot project RFP  Cert of convenience 

Part 8 9 min Not enough info to make goals

Part 9 10 min renewable energy goals

Part 10 8 min Rep Thibideau & Public Advocate Davies

Part 11 8 min  Stop hiding the costs. Make Maine leader.

Part 12 10 min Involve marine resource advisory council

Part 13 11 min Ocean wind green standard  discussed

Part 14 9 minAadditional transmission line capacity issue

Part 15 4 min duplicate policy statements fix. Language review tomorrow
Part 16 8 min Final Motion and discussion.

Maine inshore wind wannabes try to spin their legislative loss

The Baldacci administration is working to put the best spin on the peeling away of state waters-related windfarm incentives from their ocean energy task force bill LD 1810.

A statement rushed into print by the Maine offshore wind energy task force announced that the administration's policy continued to be:"There is nothing to prevent a developer of offshore wind, wave or tidal power from proposing a project in Maine state waters today."

But opponents of windfarms in Maine state waters point out that this has been the status quo since long before the ocean energy task force itself was even proposed, and suggest the administration is trying to save face over its failure to obtain corporate welfare for would be state waters windfarmers.

"Maine's existing submerged lands leasing law is broad enough that anyone can apply for a lease to  build almost anything." said Penobscot Bay Watch Ron Huber. "A windfarm, a fishfarm, a floating dock; you can apply to  the state to lease marine submerged lands and the waters over them for any reason you like. Doesn't mean you'll be able to get it approved, though." he added.

Huber said that  LD 1810 originally offered  the same incentives to build windfarms in state waters as  had been enacted  by the legislature several years ago  for upland windfarms: price supports,  immunity from environmental laws,  unaccountability to the Maine Board of Environmental Protection, authority to 'take' land to run their cables through to the grid.   "Not to mention  stripping towns'  of municipal authority to regulate windfarms within their borders," Huber said, "And fat fees to keep LURC and MDEP budget mavens happy.

Without these incentives, he said "the wind industry won't come in and squat on your natural resources. That's what the legislature gave Big Energy when it passed legislation opening up Maine's mountains to windfarming. The wind turbine industry has exploited it ruthlessly."

But LD 1810 had three flaws, critics said, that led to its extreme makeover:

1. The bill also deals with setting out incentives for OFFSHORE windfarming - an entirely dfifferent  set of economic and scientific players interested in waters well  beyond Maine's marine boundary.

2. Unlike land windfarms proposed on private lands, ocean windfarms would be in public lands heavily exploited by a variety of important businesses already licensed to be there, and willing to fight to the death the proposed incursion into their economic futures.

3. The bill directed the state to require the closing down of Maine's heating oil industry, another politically connected interest group

Despite its reservations, the Adminsitratino was convinced by the wind industry and its NGO supporters CLF, NRCM, Island Institute and Maine Audubon that the heating industry, fishermen, and coastal tourism industries should be brushed aside for the greater good, and off-the-shelf windfarm operations speedily set up in state waters as a 'transitional technology' to deepwater offshore wind.

"They were wrong". Huber said. "The oilers, the fishermen and the other marine resource economic interests bit back. With testimony en masse. With letters, with petitions, phone calls and emails. Good old fashioned Maine civics in action."

Legislators, including House Speaker Hannah Pingree, Marine Resources Committee Chair Leila Percy and many others, including those on the Utility and Energy Committee, got the message.The bill lost momentum, with legislative leaders declaring the bill must be "stripped down".  Worried windmill investors fretted that Maine was not being sufficiently 'business-friendly'.

Then the other shoe dropped. The offshore wind farm technology developers at the University of Maine saw the legislators looking askance at state waters windmills, and worried that tax incentives and other goodies for their baby - also in the LD1810 - could go out with the inshore bathwater if the bill stalled over nearshore concerns. So the academics too started disparaging state waters windmills to the legislature.  

It was unbecoming, they said, for a state like Maine - now on track to lead the nation with futuristic over-the-horizon floating offshore windfarms - to clutter and disrupt its nearshore waters economy and ecology with off-the-shelf imported shallow water windmills. Beter that the state focus solely on offshore windfarming.

This unexpected put down of inshore wind stiffened the legislators' resolve to protect maine's inshore fisheries. With the aid of the Maine's Lobstermens Association's executive director Patrice McCarron, the Utility and Energy Committee trimmed away the incentive package for state waters windmills from the bill. The parts of LD 1810l mandating reduction in the use of heating oil by Mainers also disappeared.  Cleansed of its inshore wind incentives and heating oil disincentives, the bill was voted out of committee with a unanimous Ought To Pass as Amended.

"This was a real Waterloo for the ocean windfarm industry's nearshore plans" Huber said, Governor Baldacci thought he was sweeping all opposition aside. He was badly mistaken."

So where do things stand?

"Like it was before the bill was written: non existent," Penobscot Bay activist Huber said. He added that while there is nothing to prevent a developer of offshore wind, wave or tidal power from proposing a project in Maine state waters, "nor is there any corporate welfare or hamstringing of state environmental laws to attract them. That's good enough for now."

The words seem straightforward, in the hastily written essay rushed into print by the Baldacci administration's Beth Nagusky and by former head of Maine Lobsterman's Association Pat White, now a wind energy spokesman. The op-ed was penned after LD 1810 the Ocean Energy Task Force bill  was finalized March 24th by the Utility and Energy Committee.  

The money quote in their joint essay "Passage of ocean energy bill the responsible step" is  

"There is nothing to prevent a developer of offshore wind, wave or tidal power from proposing a project in Maine state waters today."

If Nagusky and White are proudly announcing a new era of inshore wind development, then what curiously apologetic language to use!   In essence:  

We can't stop 'em!

It is...almost true. But NOT at all in the way the essayists intended. Let me explain why this bill  is very good news for Maine's wild marine environment. Why I got a delicious sense of deja vu when I read that "nothing to prevent" line. 

For that "nothing to prevent" line is exactly what they said a year ago at Energy Ocean 09, and earlier this month at the wind seminar at the Maine Fishermens Forum:  "There is nothing to prevent a developer of offshore wind, wave or tidal power from proposing a project in Maine state waters today."  Meaning that Maine's existing submerged lands leasing law is general enough that anyone could apply for a lease  to build anything, including  a windfarm. in state waters right now. Without any changes in state law. True enough. In fact, you can apply under that law for a lease to build anything in Maine state waters. Say, a floating circus big tent, with a big seahorse aquaculture operation on the side -the trained ocean equines to push it around in state waters. You can apply for a lease to try ANYTHING. The Bureau of Parks and Lands will be pleased to take your application fees.  But expect any special bending of the rules.

For as is known to victims of landside windfarming, without a fat package of tax incentives, corporate welfare and immunity from environmental and conservation laws, the wind industry won't come in and squat on your natural resources. That's what the legislature gave Big Wind last time, when they opened up Maine's mountains to windfarming, and the industry has exploited it ruthlessly. The result: windfarm proposal after proposal rushed into Augusta for approval, and ever since, under a dense cloud of opposition in the courts and other civic arenas, utility scale wind projects, flanked by join-em-if-you-can't-lick-'em NGOs like Conservation Law Foundation, Natural Resources Council of Maine, parts of  Maine Audubon, Sierra Club and others, all feasting on industry-fronted grant and consultancy money, have begun cluttering Maine's incredible upland mountains. 

Addicted to incentive money, thus yearning for new frontiers, Big Wind's investors looked appraisingly at the sea. They worked with the Baldacci administration to create a bill packed with the same incentives to build windfarms in state waters: corporate welfare, lots of fat fees to keep the agencies happy, immunity from environmental laws, the right to 'take' coastal land to run their cables through to the grid, the stripping towns of municipal authority to challenge windfarms in their borders...the usual nasties.   

But they overlooked three things: One: that this bill also directed the state to force the closing down of the heating oil industry and its replacement by electric heating;  Two: that in addition to state waters, the bill also deals with setting up corpoarte welfare for OFFSHORE windfarming -  in federal & EEZ waters beyond the Maine's marine boundary. Three: that, unlike land windfarms, ocean windfarms would be in public lands heavily exploited by a variety of important businesses  already licensed to be there, perfectly willing to fight to the death this proposed incursion into their economic futures.  

But the dazzle and wealth of the Big Windies convinced the Baldacci administration that they could just shove the heating industry, the fishermen, the sailors and coastal tourism industries aside.  

So up comes the bill LD 1810 with great fanfare, with acclamations that fishermen, heating oil suppliers and others were to patriotically give up great chunks of fishing grounds to enrich absentee corporate investors to fight global warming. 

Didn't fly. The oilers, the fishermen and the other marine resource economic interests began to bite back. With testimony en masse. With letters, with petitions,  phone calls and emails. Good old fashioned civics in action. Simple clear message: you legislators must not destroy our livelihoods. Bad bill! Bad bill!  And the legislators, including House Speaker Hannah Pingree, Marine Resource Committee chair Leila Percy and many others, including those on the Utility and Energy Committee - got the message loud and clear, and start to hem and haw.  

That was bad enough to the inshore windmill wannabes. But then they got another unpleasant shock: The offshore wind developers at the University of  Maine saw the legislators  looking askance at state waters windmills. They started worrying that corporate welfare for their baby - also in the bill LD1810 - could go out with the inshore bathwater! So the academics too started dissing state waters windmillery as stupid. As an economic hardship for existing state waters users. As unbecoming for a state like Maine, which is now on the track to LEAD the nation with over-the-horizon floating offshore windfarming. 

This surprise attack by what the inshore windies thought were their offshore allies stiffened the legislators' resolve. They set about cutting away the incentive package for state waters windmill stuff, to the great joy of the Maine Lobstermens Association, whose executive director Patrice McCarron helped the committee go over the bill with a finetoothed comb deleting the inshore wind benefits package, even to removal of a line extolling inshore windfarming in the "Whereases" section of the bill.  

Cleansed of its inshore wind kerflufflery, the bill passes the committee unanimously  So inshore wind development in Maine is back to the default we had BEFORE the hearings and the bill. As M.s Nagusky and Mr. White intone:

"There is nothing to prevent a developer of offshore wind, wave or tidal power from proposing a project in Maine state waters today."

Aye. "Nothing" as in No corporate welfare for inshore wind. No suspension of environmental laws for inshore wind, No requirement that Maine utilities must purchase power from inshore wind developers. Not a thing. Nothing. 

So indeed, "Nothing (i.e. the absence of govt handouts) is preventing  a developer of offshore wind, wave or tidal power "from proposing a project in Maine state waters today.". May it always be that way.  There remains authorization to accept lease applications for a pilot wind and tidal projects in state waters, but only tiny R&D projects. 

Bob Dylan said it: "When you got nothing, you got nothing to lose."