LePage’s lawyers seek dismissal of challenge to order halting wind permits

Source: BY MARINA VILLENEUVE, ASSOCIATED PRESS • Posted: Tuesday, July 17, 2018

Gov. Paul LePage’s lawyers asked a judge Friday to dismiss a lawsuit challenging the governor’s executive order to halt wind turbine permits in western and coastal regions of rural Maine.

Advocacy groups challenged the constitutionality of LePage’s January order, claiming it’s causing uncertainty in the wind industry. A judge in Cumberland County heard arguments Friday.

LePage’s executive order says no wind turbine permits are to be issued until a new wind energy advisory commission reports on the impact of wind projects.

The commission is collecting public comment until Aug. 15, and court documents say its 15 members, whose names have not been made public, include Governor’s Energy Office Director Steven McGrath.

Lawyers for LePage said in court Friday that his order hasn’t blocked wind projects, in part because a governor can’t change laws through executive order. LePage’s counsel raised an unusual defense: His lawyer acknowledged that the administration is ignoring the thrust of the order.

“It’s not a command to violate the law,” said Assistant Attorney General Jerry Reid, who is representing LePage. If the (Department of Environmental Protection) doesn’t interpret the executive order in an unconstitutional manner, there is no case or controversy.”

The state employee who oversees the permitting of major land use projects said he doesn’t plan to rely on the executive order to deny or refuse to act on a wind energy development, according to a June 4 affidavit by Mark Bergeron, director of the DEP’s Bureau of Land Resources.

The judge said a big question is deciding whether anyone has actually been harmed by Le- Page’s order. Nonetheless, the judge said he can’t ignore the executive order’s plain language.

“I really feel that the executive order needs to be interpreted on its face,” said Superior Court Justice Andrew Horton. “And on its face, it imposes an indefinite moratorium on the issuance of permits.”

Horton hinted that he could release a decision soon.

At least one wind project is in the works, according to DEP spokesman David Madore. Maine plans to allow a public hearing on a proposed small wind turbine in western Maine. No date is set yet.

Even if the LePage administration isn’t enforcing the executive order, having the moratorium on paper could stymie wind projects seeking funding and partners, said attorneys for the Conservation Law Foundation and Maine Renewable Energy Association.

“The best way to do it is to cancel the order or fix it,” said Conservation Law Foundation attorney Phelps Turner.

LePage, who has called wind energy a “boutique energy source,” claims wind turbines have a negative impact on tourism, property values and migratory birds’ pathways. Maine has the most wind turbines in New England, and its ambitious renewable energy goals and fast-tracked wind projects have unsettled some rural residents.