Lawsuit Claims State Went Too Easy On Wind Energy Company

, The Connecticut Law Tribune

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For several years now, a company called BNE Energy has wanted to place electricity-generating turbines in the Litchfield County town of Colebrook. The proposal has sparked vigorous legal opposition from nearby property owners and has prompted a long-running debate over proposed regulations governing wind energy projects in the state.

Now BNE is in the middle of another dispute. In 2010, in Canaan, about 20 miles west of the proposed Colebrook wind farm, the energy firm paid to have a wide swath of tall hemlocks, oaks and other trees cut down. The stated goal was to facilitate a study to see if that site would be appropriate for turbines.

BNE Energy thought the clearing was being done on private land, and even paid the adjacent-land owner for the rights. But it turns out the trees were actually in the Housatonic State Forest.

"BNE believed they were on private property where they had permission to clear the land and did immediately report the situation to us when they became concerned that they might have encroached on state property," Dennis Schain, a spokesman for the state Department of Energy and Environmental Protection, said in an email that was released by an environmental group.

The agency reached a settlement agreement with BNE earlier this year. The energy company will have to pay for a survey of the cleared area as well as $10,000 in fines. The fine might be reduced if BNE finances an environmental study of the negative impact of cutting the trees.

Berkshire-Litchfield Environmental Council Inc., a nonprofit land preservation group, had been tracking the case since the trees came down. They view BNE in a harsher light than does the state agency. While the DEEP says BNE self-reported the cutting on public land, the environmental group says the matter was actually brought to the agency by reporters for the Hartford Courtant.

As such, the Berkshire-Litchfield group doesn't believe the settlement goes far enough, especially since the state did not order the company to repair the damaged forest, which it says is required under state law. The organization filed a lawsuit earlier this year against DEEP and the state Attorney General's Office, seeking to have the settlement agreement revoked.

The lawsuit calls for voiding the state's settlement with BNA over cutting down more than 332 trees on nearly three acres, on the grounds that the deal violates state law. In documents that have been filed in the case, the environmental group points to a settlement in another tree-clearing case in which former attorney general Richard Blumenthal filed a lawsuit against Lamar Advertising of Hartford, which had illegally cleared 83 trees on state land along Interstate 84 to maximize visibility of a billboard.

Blumenthal's lawsuit sought monetary damages for the restoration of property. In 2010, the state settled with Lamar for $188,000, which was to be used to replant trees where the cutting had been done.

In 2006, the legislature approved a law providing specific penalties for parties that unlawfully cut trees on state land. It calls for a fine to be opposed, and adds civil liability exposure of "three times the value of the trees, plus the cost of restoring the land."

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."

The lawsuit calls for the state to recover that amount from BNE. But Harding said the claim is more about establishing how the state will prevent similar deforesting events from occurring in the future.

He is quick to note that he has no major complaints with Esty in general: "I think Esty has done some very good things on his watch."

Harding said there have been ongoing settlement talks with the parties in the lawsuit.

Paul Corey, general counsel and chairman of BNE Energy, did not return calls seeking comment. The DEEP deferred comments to the Attorney General's Office, which said in a statement that the lawsuit filed by the Berkshire-Litchfield Environmental Council "lacks merit."

"We will continue to defend this suit," the A.G.'s statement said. "We believe DEEP acted within its authority in seeking to resolve the matters through a consent decree. We remain hopeful that his matter can be resolved through discussions with" the Berkshire-Litchfield Environmental Council.•

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