The Falmouth Wind Project Appeal

November 20, 2018

In June 2017, Judge Cornelius Moriary of the Barnstable Superior Court shut down Falmouth’s two 1.65 MW wind turbines. Since then, The Green Center —working with a small group of Falmouth residents— attempted to restore the turbines to operation by appealing the decision. The Town of Falmouth would in the normal course be the appellant but, anticipating continued opposition by the local Zoning Board of Appeals, the Board chose not to appeal, despite our requests. With the advice of two experienced lawyers, we entered the case and sought a “reconsideration” by the judge, who promptly denied it.

The denial was appealed to the Massachusetts Court of Appeals, which held a hearing in Boston in early October 2018. Meanwhile, we urged the Town join in the appeal, confident that the Court would restore the turbine operation, with possible accommodation to those who could show harm from the turbines. The Town refused to join, having decided to move or dismantle the turbines (despite a town-wide vote in 2013 confirming a 2:1 interest in preserving them).

This decision on the part of the Board of Selectmen put them, strangely, in defense of the narrow, personal interests of less than ten citizens. The Green Center was then defending the public interest, defined by the 2013 plebiscite. The opportunity open to the Town’s Selectmen was clear. We urged them repeatedly to join. They refused.

The Appeals Court rejected the appeal on the grounds that we, The Green Center, did not have a sufficient personal financial interest vis-a-vis the $10-20 million turbines to have “standing” to enter the court. They did make it clear that the failure of the Town to join in the appeal was a further reason for rejection.

While we have not succeeded in restoring the turbines to operation, we did make it clear (1) that the turbines are not operating now because of the decision of the Select Board of the Town not to participate in the appeal, and (2) our research suggests that the Legislative Act of 2007, requested by the Town, which authorized the construction and operation of these turbines at the present location, obviates the objections of the Zoning Board of Appeals. If this Select Board were willing to rise to the challenge, accept its duty in defending the public interest, the Act authorizes the full operation of both turbines. Now.

Renewable energy is indeed needed now to prevent climate catastrophe. The turbines should not be dismantled. The intrusion they make on lives of the closest neighbors is of the level of other intrusions usually found acceptable. These are common appliances such as air conditioners, oil burners and refrigerators, and external intrusions such as vehicles on highways, wind in trees, aircraft and lawnmowers. The intrusions from climatic changes, however, are unacceptable to life as we know it and devastating to all.

We urge The Town of Falmouth to take the advice of the recent U.N. Intergovernmental Panel on Climate Change and the National Climate Assessment Report and join in the surge of electrification with renewables that must occur rapidly as we end the fossil fueled age. We should be leaders in a wealthy town with five scientific laboratories that have dealt with details of the energy crisis for decades. Time to significantly reduce our carbon emissions and avoid life altering disasters is rapidly running out.

Our activities under the aegis of The Green Center were financed by generous donations from participants and friends who joined along the away. Expenses were court costs and the resources of two law offices, Richard Ayres of Washington, DC and George Boerger of Duxbury, MA, both of whom worked extensively and at minimal costs on research and preparation of court documents. We extend our appreciation to both lawyers and their associates for steadfast attention, availability and advice. We extend thanks as well to both The Environmental Defense Fund (EDF) and The Natural Resources Defense Council (NRDC) for their interest and support.

A Climate of Facts & Opinions

[The following was submitted as a letter-to-the-editor to The Falmouth Enterprise in October 2018, but was not accepted for publication. We believe this information should be made available to the voters of Falmouth.]

After reading recent articles and letters to the editor regarding the turbines, we have become concerned that facts are being replaced by opinions and opinions accepted as facts. Researching the matter, here are some facts we found regarding the turbine issue.

  • Property values near the turbines did not decline.
  • The 2005 feasibility study by KEMA (a Dutch based international company that gives electro-technical advice, inspection and certification) recommended turbines for Falmouth between 1.5 and 2.5 MW. Falmouth installed 1.65 MW turbines.
  • Legislative Act (2007)-Chapter 200 authorizes the town of Falmouth to install, finance and operate wind energy facilities at the wastewater treatment facility, notwithstanding any general or special law in the contrary. So, no special permit was required.
  • Turbines were installed on largest parcel of public-use zoned property owned by the town, the 300+ acre wastewater facility.
  • The location of the turbines conformed to the State (DOER) model bylaw for setbacks from residences.
  • Numerous notices and two surveys were sent to the abutting residents and numerous public meetings held, including 7 town meetings over 9 years.
  • Two bus trips were organized to the town of Hull, in 2004 to see Hull Wind 1 (660KW) next to the Hull high school and in 2007 to see Hull Wind 2 (1.8 MW), situated as close as 600 feet from residences. Mr. Andersen’s house is 1,300ft (1/4 mile) from Falmouth Wind 1 (1.65 MW). Mr. Andersen and other neighbors participated in these trips, so the size and proximity of the Falmouth Wind 1 when it went up could not have been a surprise. Both of Hull’s turbines spin 24/7 without controversy.  In Gardner MA, two Vestas turbines, identical to Falmouth’s, operate 24/7.  Gardner District Court is within 590 feet of both turbines.
  • In DEP testing in early 2012 there was a slight exceedance (within margins of error) at one house. DEP’s published data showed the loudest sounds occurred when both turbines were OFF. The noise exceedance was eliminated (at huge costs to the taxpayers) in early 2012, by turning turbines off at night. In seven years of operation, the “noise problem” was never recorded.
  • Infrasound: The January 2012 report from MA DEP/DPH Independent Expert Science Panel concluded that there is no association between noise, including infrasound, from wind turbines and measures of psychological distress or mental health problems. Anecdotes of health effects are met with skepticism by physicians and public health officials. Five local physicians co-signed a letter supporting turbine operation, and the Falmouth Board of Health wrote a letter (10/19/15) citing a massive study which found “no association” between health impacts and proximity to huge wind farms.

Let’s stick to the facts.

Let’s stick to the Falmouth 2013 citizens vote, when all nine precincts, including West Falmouth, voted against funding the removal of the turbines.

Let’s operate the turbines again, reduce Falmouth’s carbon footprint, and save $10-14 million tax payers money at the same time.

Selectmen should join The Green Center’s ongoing appeal.

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