HP1005, LD 1366, item 1, An Act To Update the Maine Wind Energy Act To Include Low-emission Energy

An Act To Update the Maine Wind Energy Act To Include Low-emission Energy

Emergency preamble. Whereas, acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and

Whereas, in 2008, crude oil prices reached $147 per barrel and gasoline and heating oil prices reached over $4 per gallon, highlighting our State's reliance on petroleum for home heating and fuel for our vehicles and our potential to use electricity for home heating and automobiles; and

Whereas, along with the foreseeable possibility of prolonged high or higher fossil fuel prices, the potential implications of climate change, greenhouse gas emissions from combustion of fossil fuels and the attendant threats to the environment, economy, social fabric and human health underscore the need to explore ways that we might significantly reduce our State's dependence on liquid petroleum fuels; and

Whereas, renewable and low-emission energy holds potential to address our state and regional energy goals, including energy independence and security and limiting exposure to fossil fuels' price and supply volatility; and

Whereas, our neighboring states and provinces, as well as state and adjoining federal waters, feature significant renewable and low-emission energy resources, including world-class and untapped deep water wind resources with the potential to meet some of the State's electricity needs, such as for lighting, appliances, heating and transportation, with the potential to make the State a net electricity exporter; and

Whereas, in 2009, the Governor's Ocean Energy Task Force identified and made recommendations to overcome economic, technical and regulatory obstacles and to provide economic incentives for vigorous and efficient development of these potential indigenous, renewable ocean energy resources in ways that recognize the concurrent need to sustain the ongoing biological integrity, vitality and productivity and related existing uses of those natural resources and to ensure provision of benefits to the people of the State for use of public resources for renewable ocean electricity production; and

Whereas, although additional economic research and related technological advances are needed for efficient commercialization of deep water offshore wind power, varied and significant potential public benefits attributable to development and transition over time to optimal use of this resource and the State's other renewable ocean and low-emission energy resources necessitates action now to explore the feasibility of the State to capture these benefits for the people of the State; and

Whereas, the State must explore all energy sources that can be proven viable and competitive for Maine ratepayers; and

Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 12 MRSA §689, as amended by PL 2009, c. 642, Pt. B, §1, is further amended to read:

§ 689. Appeal

Persons aggrieved by final actions of the commission, including without limitation any final decision of the commission with respect to any application for approval or the adoption by the commission of any district boundary or amendment thereto, may appeal therefrom from that final action in accordance with Title 5, chapter 375, subchapter 7. Appeals of final actions of the commission regarding an application for an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, must be taken to the Supreme Judicial Court sitting as the Law Court in accordance with Title 5, chapter 375, subchapter 7 and the Maine Rules of Civil Procedure, Rule 80C. The Law Court has exclusive jurisdiction over requests for judicial review of final actions of the commission regarding expedited wind energy developments. This right of appeal, with respect to any commission action to which this right may apply, shall be is in lieu of the rights provided under Title 5, section 8058, subsection 1.

Sec. 2. 35-A MRSA §3401, as enacted by PL 2003, c. 665, §3, is amended to read:

§ 3401. Short title

This chapter may be known and cited as "the Maine Wind and Low-emission Energy Act."

Sec. 3. 35-A MRSA §3402, as amended by PL 2009, c. 615, Pt. A, §2, is further amended to read:

§ 3402. Legislative findings

The Legislature finds that it is in the public interest to explore opportunities for and encourage the development, where appropriate, of wind and low-emission energy production in the State in a manner that is consistent with all state and federal environmental standards and that achieves reliable, cost-effective, sustainable energy production on those sites in the State that will attract investment and permit the development of viable wind and low-emission energy projects. The Legislature finds that the development of the wind and low-emission energy potential in the State needs to be integrated into the existing energy supply and transmission systems in a way that achieves system reliability, total capital cost-effectiveness and optimum short-term and long-term benefits to Maine people. The Legislature finds it is in the public interest to encourage the construction and operation of low-emission and community wind power generation facilities in the State. For the purposes of this chapter, "community wind power generation facility" means an electricity-generating facility at any one site with instantaneous generating nameplate capacity of not more than 10 megawatts that is powered entirely by wind energy. The Legislature also finds it is in the public interest to encourage wind energy research and the development of wind generation equipment manufacturing facilities in the State.

1. Contribution of wind and low-emission energy development. The Legislature finds and declares that the wind and low-emission energy resources of the State may constitute a valuable indigenous and renewable energy resource and that wind energy development, which is unique in its benefits to and impacts on the natural environment, makes a significant contribution to the general welfare of the citizens of the State for the following reasons:

A. Wind and low-emission energy is an may someday be developed into economically feasible, large-scale energy resource that does not rely on fossil fuel combustion or nuclear fission resources, thereby displacing electrical energy provided by these other sources and avoiding air pollution, waste disposal problems and hazards to human health from emissions, waste and by-products providing energy options; consequently, wind and low-emission energy development may become viable enough to address energy needs while making a significant contribution to achievement of the State's renewable energy and greenhouse gas reduction objectives, including those in Title 38, section 576 if the State becomes more reliant upon electricity;

B. At present and increasingly in the future with anticipated technological advances that promise to increase the number of places in the State where might render grid-scale wind and low-emission energy development is economically viable, and changes in the electrical power market that favor viable clean power sources, wind and low-emission energy may be used to displace electrical power that is generated from fossil fuel combustion and thus reduce our citizens' dependence on imported oil and natural gas reduce electric rates and improve environmental quality and state and regional energy security; and

C. Renewable and low-emission energy resources within the State and , including those in the Gulf of Maine and neighboring states and provinces, have the potential, over time, to provide enough energy for the State's homeowners and businesses to reduce their use of oil and liquid petroleum-fueled heating systems by transition to alternative, renewable energy-based heating systems and to reduce their use of petroleum-fueled motor vehicles by transition to electric-powered motor vehicles. Electrification of heating and transportation has potential to increase the State’s energy independence, to help stabilize total residential and commercial energy bills and to reduce greenhouse gas emissions.

2. Need for modification of regulatory process for siting and permitting wind energy developments. The Legislature finds that it is in the public interest to reduce the potential for controversy regarding improve the process for siting and permitting of grid-scale wind energy development by expediting development in places where it is most compatible with existing patterns of development and resource values when considered broadly at the landscape level and by ensuring against undue environmental and economic impacts, including cumulative impacts. Accordingly, the Legislature finds that certain aspects of the State's regulatory process for determining the environmental and economic acceptability of wind energy developments should be modified to encourage the siting of wind energy developments in these areas best serve the State. Such changes include, but are not limited to:

A. Making wind energy development a permitted use within certain parts of the State's unorganized and deorganized areas;

B. Refining certain procedures of the Department of Environmental Protection and the Maine Land Use Regulation Commission; and

C. Because the Legislature recognizes that wind turbines , excavation, construction practices and appurtenant transmission infrastructure are potentially a highly visible feature features and a diminution of the landscape that will have an impact on views and quality of place assets, judging the effects of wind energy development on scenic character and existing uses related to scenic character based on whether the development significantly compromises views from a scenic resource of state or national significance such that the development has an unreasonable adverse effect on the scenic character or existing uses related to the scenic character of that resource . and on the cumulative scenic character impact statewide; and

D. Because the Legislature recognizes that electricity produced from wind turbines may have a potentially detrimental effect on ratepayers, judging the effects of wind energy development on rates, both on a site-specific and cumulative basis.

The Legislature further finds that, while wind energy may be developed at many sites with minimal site-specific environmental impacts, wind energy developments may have, in addition to their beneficial environmental effects and potential scenic impacts, specific and cumulative adverse environmental and economic effects that must be addressed in state permitting decisions pursuant to approval criteria tailored to address issues presented by wind energy development. Nothing in this section is meant to diminish the importance of addressing as appropriate site-specific and cumulative impacts on quality of place assets and natural values, including, but not limited to, wildlife, wildlife habitats and other ecological values.

The Legislature further finds that development of the State's wind energy resources should be undertaken in a manner that ensures significant tangible benefits to the people of the State, including, but not limited to, residents of communities that host wind energy facilities; and that the State should seek to host a substantial amount of allow wind and low-emission energy , if economically and environmentally viable, as part of a strategy to reduce greenhouse gas emissions and meet the goals established in the state climate action plan developed pursuant to Title 38, section 577.

As used in this section, "quality of place assets" has the same meaning as in Title 5, section 7019, subsection 3.

3. Transition to more efficient energy sources for home heating and transportation. The Legislature finds that replacement of motor vehicles and conversion of residential and commercial heating systems in previously weatherized structures to nonpetroleum energy sources use, if economically viable, may have the ability to enhance energy independence and reduction of overall energy costs and greenhouse gas emissions.

Sec. 4. 35-A MRSA §3403, sub-§2, as enacted by PL 2003, c. 665, §3, is amended to read:

2. Legal action; requirement to purchase or sell electricity prohibited. After consultation with the Attorney General, the commission may initiate regulatory and other legal action to protect access to markets by wind power facilities located in the State. The commission may not require or order a transmission and distribution utility that begins operations on or after December 31, 2007 to purchase or sell electricity from a wind energy or other electric generation facility.

Sec. 5. 35-A MRSA §3403, sub-§4 is enacted to read:

4. Requirements for developers. In addition to any other requirement under this chapter or chapter 34-A, a person proposing a wind energy development, referred to in this subsection as "the developer," shall:

A. File a statement of intent to develop with the commissioner, giving full disclosure as soon as the developer contacts landowners, staff or elected officials for the purpose of exploring a generation site;

B. Record leases, options and other such instruments at the appropriate registry of deeds and provide notice of that recording to the host community; and

C. Within 30 days of filing an application, establish and fund a fund for host communities and intervenors for the purpose of conducting timely technical analysis and expert testimony. The commissioner shall specify the amount required to be deposited in the fund by routine technical rulemaking pursuant to Title 5, chapter 375, subchapter 2-A.

Sec. 6. 35-A MRSA §3404, as amended by PL 2009, c. 615, Pt. A, §§3 and 4, is further amended to read:

§ 3404. Determination of public policy; state wind and low-emission energy generation goals

1. Encouragement of wind and low-emission energy-related development. It is the policy of the State in furtherance of the goals established in subsection 2, to encourage the attraction explore the economic and environmental viability of appropriately sited development related to wind and low-emission energy, including any additional transmission and other energy infrastructure needed to transport additional offshore wind energy electricity to market, consistent with all state environmental standards; the permitting and financing of wind and low-emission energy projects; and the siting, permitting, financing and construction of wind and low-emission energy research and manufacturing facilities.

2. State wind and low-emission energy generation goals. The As long as necessary and viable when compared to all other renewable and low-emission energy generation methods, the goals for wind energy development in the State are that there be:

A. At least 2,000 Up to 300 megawatts of installed capacity by 2015; and

B. At least 3,000 megawatts of installed capacity by 2020 2030, including 300 2,700 megawatts or more from generation facilities located in coastal waters, as defined by Title 12, section 6001, subsection 6, or in proximate federal waters ; and .

C. At least 8,000 megawatts of installed capacity by 2030, including 5,000 megawatts from generation facilities located in coastal waters, as defined by Title 12, section 6001, subsection 6, or in proximate federal waters.

Sec. 7. 35-A MRSA §3451, sub-§7-A is enacted to read:

7-A. Low-emission energy. "Low-emission energy" means energy derived from an electric generation source from which harmful emissions fall below emission levels from a coal-fired or oil-fired generation source.

Sec. 8. 35-A MRSA §3454, sub-§1, ¶E, as enacted by PL 2009, c. 642, Pt. A, §7, is amended to read:

E. Any other tangible benefits to be provided by the project , including benefits to the host community and the State.

Sec. 9. 35-A MRSA §3454, sub-§2, as enacted by PL 2009, c. 642, Pt. A, §7, is amended to read:

2. Community benefits package requirement. Except as provided in subsection 3, to demonstrate that an expedited wind energy development provides significant tangible benefits as required in Title 12, section 685-B, subsection 4-B and Title 38, section 484, subsection 10, the applicant for an expedited wind energy development is required to establish a community benefits package valued at no less than $4,000 $8,000 per year per wind turbine included in the expedited wind energy development, averaged over a 20-year period. This subsection does not affect the property tax obligations of an expedited wind energy development. A community benefits package must be approved by the host community legislative body, is considered an enforceable contract and has priority over all other liens.

Sec. 10. 35-A MRSA §3454, sub-§3, ¶A, as enacted by PL 2009, c. 642, Pt. A, §7, is amended to read:

A. Is waived for any expedited wind energy development that:

(1) Has an installed capacity of less than 20 4 megawatts; or

(2) Is owned by a nonprofit entity, a public entity or a quasi-public entity; and

Sec. 11. 35-A MRSA §3454, sub-§5, as enacted by PL 2009, c. 642, Pt. A, §7, is amended to read:

5. Promoting economic development and resource conservation; assistance to host communities. To the extent practicable within existing resources, the Department of Economic and Community Development and the Executive Department, State Planning Office , shall provide, upon the request of a host community, subject to remuneration by the applicant under this section, assistance for the purpose of helping the host community maximize the economic development and resource conservation benefits from tax payments and payments made pursuant to a community benefit agreement or a community benefits package in connection with expedited wind energy developments. As part of this assistance, the department and the office shall support host communities in identifying additional funding and developing regional economic and natural resource conservation strategies.

Sec. 12. 38 MRSA §346, sub-§1, as amended by PL 2009, c. 642, Pt. B, §3, is further amended to read:

1. Appeal to Superior Court. Except as provided in subsection 4 and section 347-A, subsection 3 or 4, any person aggrieved by any order or decision of the board or commissioner may appeal to the Superior Court. These appeals to the Superior Court must be taken in accordance with Title 5, chapter 375, subchapter 7.

Sec. 13. 38 MRSA §346, sub-§4, as amended by PL 2009, c. 615, Pt. E, §5 and c. 642, Pt. B, §4, is repealed and the following enacted in its place:

4. Appeal of decision regarding an expedited wind energy development. A judicial appeal of final action by the board or commissioner regarding an application for an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, may be taken to the Supreme Judicial Court sitting as the Law Court. These appeals to the Law Court must be taken in the manner provided in Title 5, chapter 375, subchapter 7 and the Maine Rules of Civil Procedure, Rule 80C.

Sec. 14. 38 MRSA §352, sub-§3, as amended by PL 2009, c. 642, Pt. A, §8, is further amended to read:

3. Maximum fee. The commissioner shall set the actual fees and shall publish a schedule of all fees by November 1st of each year. If the commissioner determines that a particular application, by virtue of its size, uniqueness, complexity or other relevant factors, is likely to require significantly more costs than those listed on Table I, the commissioner may designate that application as subject to special fees. Such a designation must be made at, or prior to, the time the application is accepted as complete and may not be based solely on the likelihood of extensive public controversy. The maximum fee for processing an application may not exceed $250,000 $1,000,000. All staff of the department, the Department of Inland Fisheries and Wildlife, the Department of Conservation, the Department of Agriculture, Food and Rural Resources and the Department of Marine Resources who have worked on the review of the application, including, but not limited to, preapplication consultations, shall submit quarterly reports to the commissioner detailing the time spent on the application and all expenses attributable to the application, including the costs of any appeals filed by the applicant and, after taking into consideration the interest of fairness and equity, any other appeals if the commissioner finds it in the public interest to do so. Any appeal filed by the applicant of an application fee must be to the agency of jurisdiction of the application. The costs associated with assistance to the board on an appeal before the board may be separately charged. The processing fee for that application must be the actual cost to the department, the Department of Inland Fisheries and Wildlife, the Department of Conservation, the Department of Agriculture, Food and Rural Resources and the Department of Marine Resources. The processing fee must be distributed to each department that incurs a cost to be deposited in the account in which the expenses were incurred in that department to reimburse the actual cost to that department. The applicant must be billed quarterly and all fees paid prior to receipt of the permit. Nothing in this section limits the commissioner's authority to enter into an agreement with an applicant for payment of costs in excess of the maximum fee established in this subsection.

Sec. 15. PL 2007, c. 661, Pt. A, §8, first ¶, as amended by PL 2009, c. 642, Pt. A, §9, is further amended to read:

Sec. A-8. Tracking progress toward achievement of state wind energy goals; assessment of tangible benefits. The Executive Department, Governor's Office of Energy Independence and Security, referred to in this section as "the office," shall, on an annual basis, monitor and make an assessment on a project-specific and statewide basis of tangible benefits provided by expedited wind energy developments in accordance with the Maine Revised Statutes, Title 35-A, section 3454 and the State's progress toward meeting the wind energy development goals established in Title 35-A, section 3404, subsection 2 and, by December 2013, in consultation with other state agencies as appropriate, conduct a full review of the status of meeting the goals for 2015 and the likelihood of achieving the goals for 2020. The office shall provide its assessment and recommendations under this section to the joint standing committee of the Legislature having jurisdiction over utilities and energy matters by January 15th of each year.

Sec. 16. Grid-scale wind power in mountain area protection subdistrict. The Department of Conservation, Maine Land Use Regulation Commission shall amend its rules to prohibit the issuance or allowance of a permit for grid-scale wind power development in a mountain area protection subdistrict. Rules adopted pursuant to this section are routine technical rules pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A.

Sec. 17. Maine Revised Statutes headnote amended; revision clause. In the Maine Revised Statutes, Title 35-A, chapter 34, in the chapter headnote, the words "the Maine wind energy act" are amended to read "the Maine wind and low-emission energy act" and the Revisor of Statutes shall implement this revision when updating, publishing or republishing the statutes.

Emergency clause. In view of the emergency cited in the preamble, this legislation takes effect when approved.

SUMMARY

This bill amends the Maine Wind Energy Act and the laws regarding expedited siting of grid-scale energy development to include low-emission energy, which is defined as energy derived from an electric generation source from which harmful emissions fall below emission levels from coal-fired or oil-fired electric generation sources. The bill also:

1. Amends the legislative findings to recognize low-emission energy and the detrimental effects of wind turbines on the environment and potentially on ratepayers;

2. Prohibits the Public Utilities Commission from requiring a transmission and distribution utility from purchasing or selling electricity from a wind energy or other electric generation facility;

3. Changes the state goals for wind energy generation;

4. Amends the community benefits package provisions to:

A. Increase the amount an applicant for an expedited wind energy development is required to establish in a community benefits package from no less than $4,000 to no less than $8,000 per year per wind turbine;

B. Require the community benefits package to be approved by the legislative body of the host community;

C. Give the community benefits package a lien that has priority over all other liens; and

D. Change the exemption from the community benefits package requirement to apply to an expedited wind energy development that has an installed capacity of less than 4 megawatts instead of the current exemption of less than 20 megawatts;

5. Repeals the direct appeal to the Supreme Judicial Court of final action by the board or commissioner regarding an application for an expedited wind energy development;

6. Increases the maximum fee for processing an application that may be charged by the Department of Environmental Protection from $250,000 to $1,000,000; and

7. Requires the Department of Conservation, Maine Land Use Regulation Commission to amend its rules to prohibit the issuance or allowance of a permit for grid-scale wind power development in a mountain area protection subdistrict.

HP1005 LD 1366	First Regular Session - 125th Maine Legislature		LR 1637 Item 1
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