Fox Islands Wind Neighbors v. Dep’t of Envtl. Protection

The Department of Environmental Protection (DEP) approved Fox Islands Wind’s (Fox Island) application for certification to build and operate a small-scale wind energy development project and issued a certification with a condition requiring Fox Island to implement a noise-reduction operation plan. After some neighbors, organized as Fox Island Wind Neighbors (FIWN), complained about the noise from the turbines, DEP demanded that Fox Island submit a revised operation protocol for approval. DEP subsequently issued a condition compliance order (CCO) accepting the revised protocol. FIWN filed a Rule 80C petition challenging the CCO, complaining that DEP’s action did not go far enough. The superior court reversed the CCO and remanded to DEP but denied FIWN’s constitutional claims. DEP and Fox Island appealed, and FIWN cross-appealed. The Supreme Judicial Court vacated the judgment of the superior court, holding (1) the CCO was a judicially reviewable enforcement action; (2) the issuance of the CCO was supported by substantial record evidence and was within the discretion of the DEP; and (3) FIWN's First Amendment retaliation claim failed because there was no adverse action taken by DEP against FIWN that would deter FIWN from further exercising its constitutional rights. View "Fox Islands Wind Neighbors v. Dep’t of Envtl. Protection" on Justia Law