Watch the process on Swanton Wind; next it could be you

Saint Albans Messenger; September 26/27, 2015

The proposed 7 industrial wind turbine project in Swanton Vt. is raising some old state government local government issues. Let me explain by reviewing the Dillon Rule and Home Rule and how they are playing out in this business of renewable energy.

John Forest Dillon was the Chief Justice of the T Iowa Supreme Court in the late 1800’s. Judge Dillon had a distrust for local government and local government officials and was very convincing in his many writings on municipal law and soon other state supreme courts adopted his views which in turn became the Dillon Rule. The Dillon Rule is used to interpret law in situations where local government power is in question. The Dillon rule constrains the authority of localities assuming that if there is a question of power then the local government does not have the power. The Dillon Rule limits a local government’s power using words like: “any reasonable doubt “when deciding if local government has the power. If there is any reasonable doubt then it is assumed that they do not. This is known as “the rule of local government power”.

Many state governments in the late 1800’s took the Dillon Rule and ran with it passing many hundreds of laws controlling even the smallest details of local government and local people’s lives. Inevitably many state legislators got overzealous and corrupt with this enormous power which they had obtained and used it to further their own agendas.

In Home Rule people have the right to local self-government including the powers to regulate for the protection of the public health, safety, morals and welfare. Home Ruled communities have greater control of the local good- control that is not exempted by specific state law. Home Rule communities are in Swanton Vt. is raising some old state govern usually exempt from requirements mandated by state legislatures. How refreshing!

In Illinois over 70% of the state’s population (12.5 million citizens) enjoy Home Rule. And in the past 20 years, no community has opted out of this Home Rule.

Home Rule has both quick adaptability for local decisions and long term financial planning for the future. St. Albans Town enacted a local 1% sales tax which made them less dependent on property taxes for revenue. This is one example of Home Rule.

The example of Home Rule which was violated in the Swanton Wind LLC application process was by the developer not obtaining a certificate of public good (CPG) for the Meteorological tower (MET tower) that he erected in January, 2012. This CPG would have required that the town of Swanton and adjoining land owners be notified of his impending plans. Because this was not done the project remained secretive and an opportunity – the only opportunity – for local input into the town and regional plans, which were being reviewed between 2012 and 2015, was lost. These town and regional plans are the only voice that Montpelier has granted localities under these Dillonesk rules of alternative energy. Because this opportunity was denied by the developer, who now must go before the Public Service Board to explain his non-compliance, this small sliver of Home Rule authority was circumvented. Now the penalty phase of this gross (or was it intentional?) neglect of not obtaining a CPG is back in the hands of the state and the Public Service Board keeping the entire process at the state level (Dillon Rule) where previous fines for such violations have been miniscule in comparison to what local government lost in Home Rule.

Please watch this process closely because your town may be next.

Dustin Lang

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