Editor’s note: Donald M. Kreis is associate director, and assistant professor of law, at the Institute of Energy and the Environment of Vermont Law School. He also serves on the board of the Vermont Journalism Trust, parent organization of VTDigger.org.
When vexatious public controversies arise, people often speak of battle lines being drawn. But in the case of utility-scale wind power in Vermont, there is literally a battle line –- and even a dispute over precisely where that line is.
The dateline is Lowell Mountain in the Northeast Kingdom community of Lowell. Drive north along Route 14 to Albany, bang a left on New Street, follow it to Bayley Hazen Road, and eventually you will come to the home of Donald and Shirley Nelson.
On a recent and chilly late Fall Friday, an intrepid writer and law school professor did precisely that.
He did not ring the Nelsons’ doorbell, however. And it is a good thing he did not, for any help they might have provided to such a visitor would have potentially subjected them to criminal prosecution for contempt of court.
It is the Nelsons’ fate to own the property that borders, to the east, the site of Kingdom Community Wind –- a 63-megawatt array of 21 wind turbines, each more than 400 feet tall, that is under construction along 3.2 miles of ridgeline. The project is a joint venture of two Vermont utilities –- Green Mountain Power (GMP) and the Vermont Electric Cooperative (VEC).
Without seeking the Nelsons’ permission –- their land is not posted — you can drive northward past the Nelson homestead, park after a few hundred feet, cross a field on the left side of the road, and walk along a trail that will take you up the side of Lowell Mountain. Eventually the trail leads uphill and, after a series of switchbacks, you come upon a birch tree with a couple of remarkable signs on them.
Instead of the familiar “Posted: no trespassing” warning you might expect in such a spot, there are two 8 ½ x 11 pieces of paper that are laminated and nailed to the tree. One recites, in big letters, “1000’ From Construction Property Line.” The other is a copy of an injunction issued in the above-referenced case by Judge Martin Maley of the Superior Court.
Judge Maley’s order starts off with an explicit finding that the Nelsons and “other persons acting in concert and participation” with them are “improperly interfering” with the construction of the wind turbines. According to the court, the interference consists of “intentionally occupying” the northwest corner of the Nelsons’ property, adjoining the site of Kingdom Community Wind and, indeed, in “close proximity” to the blasting on the site that construction crews are scurrying to complete before winter truly sets in.
“Close proximity,” it turns out, means anything short of 1,000 feet away from the blasting.
Courts issue injunctions in order to use their authority to order people to do things, or not to do them. In this instance, Judge Maley has ordered the Nelsons, and “those acting in concert and participation with them,” from being within 1,000 feet of the boundary line between the project site and the Nelsons’ land “for two hours before blasting and until the all-clear whistle is sounded.”
You could read this as just an expression of benign concern for public safety. Except that Judge Maley’s order explicitly determines that the Nelsons and their collaborators have been deliberately placing themselves within the blasting safety zone so as to impede the project. The Nelson sympathizers accuse GMP of deliberately timing the blasts so that, given the two-hour intervals, the encampment they have established near their property line is effectively out of business during daylight hours on weekdays. And, like the proverbial falling tree, if dissent takes place in the forest when nobody is around to hear it, who will hear it?
In any event, on a day when there is no blasting and thus sheriff or state trooper present at the 1,000 foot marker to enforce the injunction, walking onward along the trail means that before long you come upon the battlefront proper.
On one side, behind a line of blaze-orange tape strung along a series of trees, is the noisy construction site. Large earth-movers rumble, atop a wide swath of gravel, along a ridgeline that has been entirely cleared. The loud sounds of construction –- pounding, digging, trucking -– echo through the hillside, audible even hundreds of feet below.
On the other side of the orange tape, Occupy Wall Street meets the woods of the Northeast Kingdom. There is a small tent city, a fire pit, and lots of signs. “Save the Lowell Mountain Range” is one that hangs in several places; among its 23 bullet points is: “Your Federal tax dollars lining the pockets of a foreign owned company,” referring to GMP’s Canadian parent company, Gaz Metro.
One particularly inscrutable sign reads, simply: “Unless.” The reference may be familiar to fans of the Dr. Seuss classic The Lorax, in which a perfectly fine forest of Truffula trees is razed for profit, notwithstanding the protestations of the fuzzy Lorax who purports to speak for the otherwise-silent flora. In defeat, the Lorax disappears, leaving behind just a “small pile of rocks,” bearing the word “unless.” The message, explains Dr. Seuss, is that “unless someone like you cares a whole awful lot . . . nothing’s going to get better. It’s not.”
So, the faceoff along that orange-tape battle line is a clash of cultures. It is also, quite literally, a boundary dispute. The Nelsons contend that the wind turbine project is actually encroaching on their land by more than 150 feet. This claim –- at the heart of the lawsuit that produced the injunction -– was the subject of dueling testimony from each side’s surveyors when the court heard each side’s request for an injunction booting the other off its land. The turbines won; the Nelsons lost.
Though the case technically remains unresolved –- the injunction being a preliminary one – the court made clear its view that, one way or another, the project will be completed as planned. Even if the project is encroaching on the Nelsons’ land, it is all but inevitable that the utility-owners of the turbines can take whatever land they need by eminent domain. Meanwhile, all of the frantic blasting prior to winter arises out of the fact that if the facility does not go on line by the end of 2012, the owners lose some $47 million in production tax credits from the IRS. Conversely, determined the court, any harm occasioned by booting the Nelsons and their allies off land the Nelsons may ultimately prove they own is just “temporary in nature.”
The squabbling over the injunction masks other, more troubling, issues in the litigation.
Judge Maley determined that GMP is likely to succeed on its claim of “nuisance” against the Nelsons. This does not turn on whether anyone is literally a nuisance but, rather, on the question of whether the defendants are interfering with GMP’s use of its land. The Court also determined that GMP is likely to prevail on its claim against the Nelsons of “intentional interference with contract.” The contract here is the one between GMP and its blasting company.
“Nuisance” and “intentional interference with contract” are time-honored concepts in civil tort law, but they typically arise in the context of commercial disputes and/or land-use schemes that are permanently noxious to neighbors. To apply these concepts in the context of social protest, especially in a state like Vermont with a long and honorable history of dissent, is chilling. How dispiriting that the debate over wind power in Vermont has come to this! The law already makes trespassing a crime without setting precedents that would encourage future claims of monetary damages against protest movements. Those potential ill effects of such precedents, unless superseded by the Legislature, will linger long after the blasting on Lowell Mountain is done, just weeks if not days from now.
What got a professor from Vermont Law School invited to visit the battlefront on Lowell Mountain was not any expertise in tort law but his recent Vermont Public Radio commentary praising large wind turbines, even when placed on ridgelines, as beautiful industrial objects. There are no wind turbines yet on Lowell Mountain and, thus, no way to evaluate how beautiful they will be once built. But this much is clear: The signs, the orange tape, the rival camps on opposite sides of a battlefront, and the creative application of tort law by utilities so as to thwart protest? Those things are ugly.