Lawsuit Claims State Went Too Easy On Wind Energy Company

, The Connecticut Law Tribune

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Attorneys associated with the Berkshire-Litchfield case say the lawsuit is important because for the first time a state trial court is being asked to enforce the law, which requires state forests to be "restored to their natural state" when trees are cut down without permission.

Nicholas Harding, an environmental lawyer with Reid & Riege in Hartford, is representing Berkshire-Litchfield Environmental Counsel in the DEEP lawsuit. He also represents FairWindCT, a group of land owners opposed to the Colebrook wind farm. In June, the Connecticut Siting Counsel approved the Colebrook farm, but a lawsuit by opponents has halted work on the project.

Harding notes that there are a limited number of lawyers in Connecticut who do this sort of work, and that he regularly represents those accused of illegal cutting as well as environmental groups.

"Here's the importance" of the latest lawsuit, he said. "I defend a lot of people and industrial clients who make mistakes from time. So from now on, when someone wants to hold my clients accountable, I'm going to say, 'Well these guys [BNE] cut down a million dollars worth of trees, and they only had to pay $10,000."

Harding argues in the lawsuit filed in Hartford Superior Court that the DEEP did not follow the 2006 law when settling its complaint with BNE. In the complaint, the plaintiffs argue that the consent agreement reached between BNE and the DEEP should be voided. "Then we'll see if the [current] Attorney General will step up and protect the forest the way Richard Blumenthal would have," Harding said.

The named defendants in the lawsuit are Daniel Esty, commissioner of the Connecticut Department of Energy and Environmental Protection, Susan Whalen, the deputy commissioner of the agency, and Attorney General George Jepsen. The Attorney General's Office defends the state in all civil legal matters and is routinely included in lawsuits against state agencies.

According to the lawsuit, the area cleared of trees included a "dry subacidic forest," which is considered by environmentalists to be a "key habitat of greatest conservation need."

In addition to the trees, the area was a habitat for red bats, hoary bats, raptors and hawks.

Starling Childs, a Yale-educated forester who has been supporting the environmental group's legal fight, said the punishment BNE received was insufficient.

"There is a very defined and stated protocol for restitution and restoration under such egregious natural area destruction and protected forest trespass such as the folks from BNE did," Childs said. "We engaged one of the best tree-appraisal specialists in the state, and based on the defendant's own stump tally count of more than 500 trees, and measurements of those trees submitted to DEEP, the fair estimate runs well north of $1 million."

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