Kreis: The ugliness on Lowell Mountain

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.

Comments

  1. Christian Noll :

    “He did not ring the Nelsons’ door bell however. And it is a good thing he did not, for any help they might have provided such a visitor would have potentially subjected them to criminal prosecution for contempt of court.”

    Really? Is that a fact? How so?

    I agree, “Those things ARE ugly.”

  2. Don Kreis :

    Mr. Noll:

    I respectfully suggest that you read the Preliminary Injunction entered by the Superior Court. Follow this link for all of the documents in the case: http://energizevermont.org/2011/11/lowell-protest-court-psb-documents/

    The injunction applies not only to Mr. and Mrs. Nelson (whom I have never met or had any contact with) as well as their “agents, employees, attorneys, invitees, licensees, permitees and any and all other persons acting in concert or participation with them.” I don’t know who wrote that language, but whomever typed those words did a pretty good job of including the whole universe of people who so much as have any interaction whatsoever with the Nelsons. Had I met them, and entered their land with their explicit or even their implicit permission to climb Lowell mountain, I surely would have fallen into either the “licensee” or “person acting in concert or participation” categories.

    When I passed the Nelson’s house, I had no knowledge of the day’s blasting schedule. And thus I did not know if my visit to Lowell Mountain would constitute any of the activities listed in the injunction that are prohibited to those covered by it. I did not want to risk arrest — it was that simple.

    You did possibly catch me on one thing, though. I did not approach the Nelsons’ house with sufficient closeness to ascertain whether they do, in fact, have a doorbell. Perhaps someone acting in concert with them can enlighten.

    The main point I was making in my essay is that the injunction, clearly entered at the urging of Green Mountain Power, is a pretty big stick. I worry that the utility, and the Court, went too far — indulging, perhaps, in a measure of exasperation with people trying to thwart a project that clearly will be built but in circumstances where further delay could be costly. As a law professor would say, bad cases make bad law.

    • Christian Noll :

      Mr. Kreis thank you for the link.

      Yes I read the Preliminary Injunction and it does seem like some all encompassing language for just two pages. Isn’t it the judge who writes it?

      You mean if you rang the Nelson’s bell to inquire about directions on their property or some other related thing to the Lowel Mountain Wind Project as to ascertain knowledge of it, AND you divulging it to someone else only THEN they’d be potentially criminally liable for contempt of court?

      That’s what you meant right? That’s how I understood it.

      Please correct me if I’ve misunderstood.

      • Don Kreis :

        No — I wasn’t worried about anyone’s criminal liability but my own. The injunction does not apply to everyone in the world — just people who have some connection to the Nelsons. (Others might be subject to arrest for trespassing, but could not face charges of contempt, which would be a felony.) Would the Nelsons have been violating the injunction by permitting me to be on their land so that I could visit (or at least look at) the project site? I doubt it, but that is ultimately a question for them and not for me or anyone else who might visit.

        The arrest of two Sterling College students two days ago, in the very place where I walked and explored, testifies to the fact that this is anything but an abstract concern. The statement about these arrests that appears elsewhere on vtdigger is from a group calling itself the Lowell Mountain Occupiers. Without commenting on whether I personally have had any contact with anyone who might consider themselves part of this group, I will point out that I have taken care not to be perceived as a member of that group myself.

        I went to Lowell and checked out the Mountain Occupiers’ side of the Maginot Line because opponents of the project encouraged me to do so after hearing my VPR commentary. I’d be happy to accept an invitation from GMP and/or the Vermont Electric Co-op to visit the actual site of the project, either before or after its completion. Hopefully both sides realize that I am just someone who calls ‘em as he sees ‘em.

        • Christian Noll :

          Professor Kreis thank you.

          I needed your explanation as I misinterpreted your use of the word “Them” in the phrase “potentially subjected ‘them’ to criminal prosecution.”

          When you said “Them” you meant the visitor (i.e. you) and NOT “Them” the Nelsons.

          Gotcha . . . Thank you.

      • Don Kreis :

        p.s. Yes it is the judge, perhaps with the assistance of her or his law clerks, who typically writes preliminary injunctions and other orders. But it’s not unheard of for a judge, particularly one in an overworked state court, to ask the prevailing party — in this instance, GMP — for suggested language in these circumstances. I have no idea if this happened here. If it did, there’s nothing improper about it.

  3. Owen McClain :

    Prof. Kreis,

    I heard your commentary on the beauty of wind turbines and now I have read your commentary on the ugly nature of the Lowell Mountain dispute. I appreciate your aesthetic conundrum, but even philosophers must decide whether it is worth getting their hands a little dirty to pursue their vision of beauty. Plato himself favored death over exile. I doubt that vigorous civic confrontation is truly ugly, but creative legal maneuvering may strike a little closer to the mark. But even if both are ugly to you, I am still left wondering what your commitment to beauty is.

  4. Don Kreis :

    To Owen McClain:

    I’m at a bit of a loss when it comes to clarifying my commitment to beauty. I disagree with your suggestion that wind turbines might not be ugly but “creative legal maneuvering” is. I think certain industrial objects, as well as a well-crafted, creative, and ultimately persuasive legal argument, are things of beauty. Indeed, I think this might account for why a lawyer like me is interested in architecture. That which is constructed well, in any sense, strikes me as beautiful.

    What do I find ugly about Green Mountain Power v. Donald and Shirley Nelson? Well, the scene atop Lowell Mountain is certainly unsightly, both because it is so obviously a battleground and because the construction going on there has literally cut an unsightly swath through the forest. The effects of the latter, I hope, will ultimately be mitigated. But, in my view, the truly ugly thing is what I identified in my essay: not legal creativity but the use of the law as a cudgel against people whose principled exercise of their First Amendment liberties is worthy of protection even though I probably disagree with them on the merits.

    With apologies to Plato, I would probably choose exile over death. Does that, or my discussion of the situation on Lowell Mountain, attenuate the credibility of my professed devotion to beauty? I have not studied philosophy enough to have a thoughtful answer. So I leave the question to you.

  5. Owen McClain :

    Prof. Kreis:

    Thank you very much for your response! I agree. I would choose exile as well.

    In any event, I think there are at least three ways to evaluate whether your devotion to the beauty of wind turbines is attenuated now that you have revealed your respect for the First Amendment.

    The first would say that your devotion is measured in terms of your contemplation itself. Contemplation is devotion. This philosophy does not resolve the tension between the beauty you articulated in your first commentary with the ugliness described in your second. It revels in this tension.

    The second philosophy might say that beauty attended by ugliness is not beauty. Under this view, your devotion to something attended by controversy and ugliness is not attenuated, it is just a kind of idolatry.

    The third view says that your devotion is commensurate with your willingness to sacrifice for it. It is a sort of Cheneyism, although it predates him. It says that all beauty is attended by an evil of some sort and we deserve beauty when we are willing to deal with ugliness. Under this rubric, your devotion is beginning to look attenuated.

    In my own endeavors I waiver between the first and the third.

    By the way, I wonder if you lose to a “well-crafted, creative, and ultimately persuasive legal argument” whether it looks more like “a cudgel” than something well constructed.

    I have enjoyed both of your commentaries and look forward to more. Thank you.

  6. Don Kreis :

    Owen:

    I hope it is okay to address you informally. I think I qualify for philosophy no. 1 in the rubric you lay out. Though I do revel in the tension you describe, I think the tension is not as direct as you suppose. Kingdom Community Wind and its majestic wind towers will definitely be built. I think the protestors on the Nelsons’ land, or the realistic among them, understand this. So, when the project opponents exercise their constitutional right to assemble peaceably, they are doing something inherently beautiful that ultimately won’t interfere with the erection of the turbines. I realize that GMP thinks otherwise and has pressed some colorable arguments to that effect in court. In these circumstances, perhaps some kind of mediation is in order, particularly because the Nelsons have a colorable claim that GMP is actually encroaching on their land.

    To my way of thinking, the Nelsons have earned themselves a considerable amount of respect in the eyes of people like me as the result of their refusal of GMP’s lucrative buy-out offer. There is beauty in that as well.

    Taking the conversation in this particular direction is very satisfying. Often discussion of topics related to electric generation projects, be they nuclear or wind or whaver, is much less thoughtful.

    cheers,
    Don

  7. You can see the ugliness for yourself here
    http://lowellmountainsnews.wordpress.com/
    including the latest photos from state agency files of the destruction of the formerly beautiful natural areas with wetlands and headwater streams along the ridgeline.

  8. There are a few legal issues that are relevant and not mentioned. This situation was made possible because of the ridiculously small setbacks that 1) GMP needed and 2) the PSB approved. A review of ordinances from all over the country was submitted to the PSB showing that the vast majority of municipalities, states and others who write regulations involving wind turbines have set a standard setback of 1.1x the total height with blade extended, or if ice throw is a possibility, 1.5x the total height. For 459 foot tall turbines where there is a potential for ice throw, the minimum setback should have been more than 600 feet. But because GMP did not control enough land to accommodate a safe setback, it requested and the PSB approved 196 feet from the Nelsons’ property line to the nearest turbine, with the crane path road even closer than that to the Nelsons’ border. The site map might help for a better understanding http://www.vce.org/KCW_Postdevelopment_Subw_Map_34x48_060211.pdf.

    GMP has now blasted into the land next to the Nelsons’ property line (which the Nelsons say they own and which Judge Maley could and should have resolved before allowing it to be blasted) a big hole that drops off more than 15 feet, so someone hiking on the Nelsons’ property at dusk might just fall off the cliff and die. Eventually someone will probably suggest putting up a chain link fence between the two properties. Safety seems to come as a second thought on GMP sites, as has been documented in several complaints to VOSHA.

    In the Georgia Mountain case, the site is so constrained that the developer asked for and the PSB granted a setback of 155 feet from the neighboring property line.

    In both Lowell and Georgia Mountains, the developers say they need 1000 feet for a blasting safety zone. That was never discussed in the PSB proceedings. Wind developers have a legal means through the PSB process to obtain those safety zones, either through temporary or permanent condemnation of land, as GMP is doing for its transmission line expansion required for the Lowell wind project. The 2nd article of the Vermont Constitution specifically says that private property can be used for the public good, but landowners must be compensated. But neither GMP nor GMCW used the PSB process available to take the land it claims it needs. Instead, it first threatened to sue the Nelsons, then abruptly offered to purchase the property, followed a few hours later by the written threat to sue them if the public didn’t vacate the Nelsons’ private property by noon the following day. Once in court GMP sought damages from the Nelsons of $5,000 a day.

    Judge Maley’s order has set a safety zone for blasting of 1000 feet from the Nelsons’ border, not from the blasting zone. Because the wind turbine construction moves away from the Nelsons’ property line as the project goes south, there was no need to use the Nelsons’ property for the blasting safety zone except in a fairly small area (again look at the map above to understand the logistics). The net effect of what GMP has obtained from the Shumlin-appointed Judge is to deprive the Nelsons and the public who has had access to the Nelsons’ property for decades of about 150 acres of the Nelsons’ 620 acres, all day every weekday for the rest of the year. The idea that it is temporary is a joke, because after the blasting, there will be the turbine construction and operation. Two manufacturers’ turbine maintenance manuals say workers should not be within 1200 to 1500 feet of operating turbines. GMP will no doubt have to keep people off the Nelsons’ property at the points closest to the project well into the future, and anybody working in the woods on the Nelsons’ property for logging, sugaring, or other normal Vermont winter operations will be at risk for ice thrown well beyond 1000 feet, and the ice can weigh hundreds of pounds.

    The Nelsons are innocent bystanders in all this. It is perhaps one of the finest agricultural properties in the state of Vermont. As a society, we have failed to designate the Nelsons’ farm as an important part of the working landscape, giving it value in the PSB process. Right now, it is not only not valued, it is being dramatically devalued by GMP. The Nelsons are right now subjected to massive amounts of noise, the incessant activity of the greatest accumulation of heavy industrial equipment on one site that this state has ever seen. If you can think of something equivalent, by all means write with a correction. And after the project is operating, the wind turbine noise will likely make their house uninhabitable under certain conditions, as the thump thump thump and jet engine sounds flow down through the amphitheater in which their home sits.

    GMP is setting horrible precedents left and right, from how it treats it nearest and largest neighbors (there are many other neighbors whose investments and quality of life are being put at risk) to getting setbacks that are the worst in the country to getting a pass on all water quality and groundwater regulations such that it is becoming evident that any developer in the future wanting to do high elevation development can point to GMP’s Lowell Wind project and get a green light to destroy the natural environment of our most sensitive and important ecological areas. As an environmentalist, I am astounded by what I am witnessing.

    Don Kreis has scratched the surface of the injustices and precedents being set in this case that go far beyond the issue of wind energy development. The heart of our democracy, our constitutional rights, and our environmental protections have been sacrificed for Green Mountain Power. With David Blittersdorf stating in numerous talks around the state in the last two months that we need 200 miles of ridgeline wind development and Governor Shumlin supporting GMP and more wind energy development, if you live near a mountain with a transmission line nearby, you can expect that the wind speculators have been there and your neighborhood is likely to be next. And if you think your property values will be safe, visit Lempster NH now and ask why their taxes just skyrocketed. The answer is there are a lot of abandoned properties.

    Attorney General William Sorrell said that the people on the Nelsons’ property are violating no laws. With GMP planning to become the state’s largest utility, it is especially disturbing that this power company does not seem to care about our laws or our constitutional rights.

  9. Townsend Peters :

    The prohibition in the injunction appears not to apply to a person who is not the Nelsons or their agent or acting in concert with the Nelsons.

    So the injunction apparently is not about protecting health and safety, since most of the people on the planet would not be subject to it and could cross “the line.”

    While I do not agree with the views of those seeking to stop this project, something here smells.

  10. edd foerster :

    What “smells” is the contemptuous attitude toward our democratic institutions shown by those who opposed this project through our permitting process and lost. They now believe that their moral superiority gives them the right to disregard the result of our civil institutions and continue opposing the project through obstructionist methods, much like abortion protesters blocking access to women’s clinics, with Annette Smith as their self-appointed Joan of Arc.

  11. Duncan Kilmartin :

    Having been a practicing lawyer in the Kingdom for 43 years, recently represented the Nelsons regarding certain issues currently in play, and a lay student of the economic, systemic, structural, governmental, and governance issues involved in GMP/VEC’s Lowell project, I would like to share some views not yet expressed or expressed in a manner I find wanting or incomplete.

    On the issue of the boundary line between Range 2 and 3, known as a range line some basic facts are important.

    Trip Wileman, when he was involved with John Zimmerman/Martha Strakus/VERA/EnXco, in 2001 and 2002, attempted unsuccessfully to move the entire range line between ranges 2 and 3 eastward toward Albany, to increase his land holdings and tower sites, decrease the Nelsons’ land holdings and eliminate a known opponent, and accomodate several of the “best” tower sites which he knew from VERA’s testing were on Nelson’s land (in other circles called “insider knowledge”), which are currently being used by GMP/VEC as tower sites.

    His reason was simple: more money in his pocket and elimination of an opponent, the Nelsons.

    By the way, it is rumored that Trip is a law school graduate, so his “insider knowledge” of siting would be greater, especially on legal claims he may have made to the Nelsons to get them to agree to “his deal”.

    Martha Strakus, John Zimmerman’s former or current partner at VERA, was touted as GMP’s expert on tower siting for the current project. If one examines Krebs and Lansings maps for GMP on line you will see that VERA, along with Trip’s 2002 surveyor, provided the basic information as to property lines, and tower sitings to Krebs and Lansing, to make the site maps which anyone can see on line. Check out the legend on the right hand side of each map for references to VERA and Blais Surveying, and the years involved.

    However, Jon Meek, some relation to Wileman, owned two lots in Range 3 across from Nelson and Mygatt in Range 2, and was not part of the “agreement” between Wileman and Nelson. Neither was Mygatt. However, that agreement, currently relied on by GMP even though it has nothing to do with the lots in question, is subject to be set aside for reasons too detailed for this comment.

    The significance of Jon Meek not being a part of the agreement is that the most important range/boundary line regarding the Nelsons and Wileman’s licensee GMP is that the range line of the two lots on each side of the most effected area is between 140 and 180 feet west of where Wileman and GMP wants it, and puts the crane path, parts of at least one tower pad, and the blades on and over Nelson land.

    GMP has known of this issue since at least November 2010 because the Nelsons included it in their prefiled testimony to alert the PSB regarding setbacks from property lines. Nelsons also pointed out the foundational errors in Krebs and Lansing building upon VERA’s earlier work with EnXco.

    GMP, notwithstanding the fact that PSB had no jursidiction over boundary lines, filed numerous PSB discovery requests on the Nelson’s regarding the range line issue, and filed an affidavit from Charlie Pughe that the Nelsons didn’t know what they were talking about, and of course any “expert” hired by GMP was unimpeachable a/k/a another example of GMP’s corporate arrogance and hubris.

    While many readers will have stopped earlier because this all sounds toooooo legal and much tooooooo detailed, I might suggest that resolution of these issues does not lay in Plato, ideals of beauty, etc., but rather in the devilish details of facts and the law.

    The first error in the judicial proceedings seems to have been committed when the assignment judge assigned a novice judge appointed by Governor Shumlin only in August of 2011, but not yet vetted by the Senate confirmation hearings which will take place in March, who had no superior court experience, to a case where a corporate giant by Vermont standards, with high paid high profile attorneys, were pitted against a Vermont farmer who had appeared pro se (as their own attorneys) in the PSB proceedings.

    The assignement judge should have known that this was a David and Goliath situation which was exaccerbated by the fact that David and others similarly situated were paying for all of Goliath’s weaponry and army of attorney and experts, and David (the Nelsons) were resource poor.

    This failure on the part of the assignement judge to have assigned an experienced, battle tested veteran Judge, who had actually been confirmed by the Vermont Senate, was manifested when the assigned Judge said he did not know what a range line was, and did not know that ANR was the acronym for the Agency of Natural Resources.

    The Judge’s mention of condemnation, and his false premise that it is inevitable, is in error, and reflects not his independent thinking, or even that of a naive and inexperienced law clerk (I can say that having been law clerk to a Federal Judge), but that of GMP’s attorneys, whose upscale fees are being paid entirely by ratepayers and taxpayers.

    The issue of necessity in relation to the Nelsons is not that of the project as a whole or Quebec’s need to get U.S. federal tax dollars as a subsidy that will guarantee the 9% rate of return to the Quebec Provincial Pension Fund which owns GMP. That is another error of this novice judge.

    It is the “necessity” of locating parts of two towers and the crane road on Nelson land, or so close to the Nelson’s land that constitutes a nuisance that destroys their ability to use their land to the fullest extent guaranteed by the Constitution and law. That of course will require GMP to reveal all the testing data that caused these sites to be chosen, and all the e-mails etc. which referenced these particular towers as being necessary to the project. Probably that will go back to 1988-2003 with VERA’s involvement with EnXco, and Wileman’s reasons for moving the range line eastward toward the Albany town line.

    You cannot claim as GMP has claimed, that this is driven by economic necessity, without having disclose why these tower locations and the location of the crane road are necessary in these particular locations, which will require GMP to reveal all that went into choosing these particular sites. If that information were not damning to them, why have they hidden it under the cloak of confidential “proprietary information”? Why did they want to buy the Nelsons off?

    While GMP has spent thousands and thousands of OUR dollars to promote “inevitability” and “invincibilty”, it just ain’t so unless we have a corrupt judiciary and jury system. Some of these issues may end up before a jury, and if they don’t, the judiciary should be looking at whether these tower locations on Nelson land were necessary in the first instance, if GMP seeks “after the fact” condemnation.

    Power corrupts, and absolute power corrupts absolutely. It would appear that finally in Vermont we are on the verge of seeing whether we are at the end stage of absolute corruption.

    More apt is the notion that the judiciary seems to have adopted with its preliminary injunction and the Supreme Court’s denial of emergency relief:

    “GMP/VEC is too big to fail; the Nelsons are too small to succeed.”

    Such an ultimate result is neither poetry, beautiful, justice or constitutional. It stinks!

  12. Ken Bechtel :

    Has anyone, in the local media, the public or the state government inquired about the necessity of industrial-sized-wind turbine projects as opposed to smaller scale wind?
    What if instead, the government offered tax credits/incentives/discounts for individuals to buy small-scale windmills for their homes, much like they already do for fitting homes with solar panels. Small-scale windmills won’t produce as much electricity, but they wouldn’t need to. They’d just produce enough to reduce the individual home owners need to use GMP.
    I know my idea, would cut into GMP’s bottom line, but it could produce actual local jobs, by creating businesses here to produce and maintain the windmills, as well as install them. And it won’t destroy the natural beauty and landscape, which is why most of us live in Vermont.

    Vermont is not a large state, maybe we need to remind our Governor and legislators that sometimes, small is much, much better, even if it hurts some corporations’ bottom line.

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