LOWELL, VT - The law firm of Hershenson, Carter, Scott and McGee, P.C., of Norwich, VT, has plunged into the Lowell Mountain wind project fray. The firm entered its appearance on behalf of Donald and Shirley Nelson, defendants in an Emergency Restraining Order petition filed by Green Mountain Power.
On behalf of its clients, the firm filed a Defendant's Emergency Motion to Dissolve TRO (temporary restraining order) and Request for Expedited Hearing on the Emergency Basis, an Answer to Plaintiff's (GMP's) Complaint, and has prepared a counterclaim.
All but the counterclaim were officially on record as of Wednesday. The counterclaim, according to the superior court clerk, was not yet an official part of the record and could not be accessed.
The matter, as originally filed, is scheduled for a hearing on the restraining order at 1:45 p.m. Thursday in Superior Court, however that hearing may now be delayed with the appearance of counsel for the defendants and with the filing of a counterclaim.
Green Mountain Power obtained a Temporary Restraining Order on Oct. 14, 2011, in order to prevent the Nelsons and their guests, campers protesting the Lowell Wind Project, from being on Nelson's property in the vicinity of the blasting needed to construct the project. The project is on the abutting property. The protesters, for their part, were camping out on the site to slow down or perhaps stop the construction, if possible.
Since the court issued the temporary order at GMP's request, the Nelsons have put up "No Trespassing" signs, posting their land to discourage the "campers." The campers, for their part, appear to have moved to neighboring property but have not given up the fight.
In its motion to dissolve the temporary restraining order, the defendants' law firm alleges that GMP made "false and misleading declarations" and didn't give the defendants a chance to refute those allegations. Further, there was no "emergency," according to the paperwork on file with the court.
More specifically, Hershenson et al claim GMP created the emergency when it alleged in its petition that blasting at the site would cause debris to disperse onto the Nelsons' property and could potentially injure anyone camping there. According to Nelsons' law firm, if GMP engaged in blasting such that debris scattered as far as they claim it would, that blasting would violate GMP's existing environmental permit conditions.
GMP has already been on the hot seat for several environmental violations, which lead the state to temporarily shut down the project; although those matters have reportedly been resolved.
Hershenson et al stated: "GMP's announced intention to blast in the near vicinity of defendant's property will violate defendant's property rights and will constitute a trespass and a nuisance under settled principles of Vermont law...."
The firm's Motion to Dissolve the existing TRO states that any blasting that causes flying debris to escape the permitted building site is, by law, illegal.
Hershenson et al went on to say that GMP's assertion that a denial of an emergency restraining order would cause "irreparable harm" was also false. GMP stated that, if the project did not proceed on time, the company could lose substantial federal tax credits. The deadline for completion of the project is December 31, 2012. Hershenson et al argues that GMP, by its own admission, stated that the wind project construction had to begin by Aug. 1 of this year to meet the December 2012 deadline. Since that didn't happen, the firm argues, the deadline is already shot and there is no more harm to GMP. Arguably, of course, if GMP is not tied up in lawsuits and concerns over protesters, the company could speed up its construction and potentially meet the deadline.
Defendants' law firm further stated that GMP's assertion that time was of the essence was a falsehood because GMP could have begun blasting and constructing at a different area, thereby allowing the court to set the matter for a non-emergency hearing with sufficient notice to the Nelsons. No "emergency" existed, the document asserts.
In its motion to dissolve the temporary restraining order, Hershenson et all reiterates the argument that no "emergency" existed and that the matter should have been set for a non-emergency hearing with full opportunity for the Nelsons to respond, under Vermont Rules of Civil Procedure, Rule 65(a).
In its harshest language yet, the firm states: "The facts alleged by GMP in support of the need for emergency action are nothing but a contrived scenario created by GMP."
In response to the most recent court developments, GMP spokesperson and Corporate Communications Manager Dorothy Schnure stated, ""The Nelsons in their filings have made a series of allegations that are quite simply not true. Green Mountain Power's interest is wanting to protect the health and safety of the public as we move forward building a wind project that Vermonters overwhelmingly support and that the Vermont Public Service Board, through an extensive review process, has found to be in the public good. That can easily be achieved if the Nelsons and their invitees respect the protocol of staying clear of blasting operations during their limited duration."
In the meantime, the Nelsons have asserted that the property line between their land and the land leased by GMP for the wind project is in dispute. According to the Nelsons, GMP may actually be engaged in the construction on Nelsons' land. That matter has not yet been adjudicated.