Last week was a busy week for the Land Use Regulation Commission (LURC).  First, intervention status was granted to CLF and several other organizations in the Highland Wind case, a 39 turbine project located in Somerset county.  In addition, the Commission was presented with a novel legal argument.   The issue revolves around what sort of scenic standard should be applied to “associated facilities” of a grid scale wind power development.  The various components that make up the physical characteristics of a wind development consist of two broad categories: 1) generating facilities (the turbines, towers and transmission lines) and 2) associated facilities (the roads, buildings, generator lead lines, substations, etc…).

Historically, the scenic impact of both sets of facilities were evaluated under the Wind Energy Act (WEA) that seeks to provide meaningful guidance on evaluating scenic impacts by providing a list of 6 criteria that the applicant must adhere to.  However, last week, Commissioners were asked to apply an exception provided for under the WEA statute.  The exception provides that if the Commission “determines that application of the [wind-power-specific standard] to the development may result in unreasonable adverse effects due to the scope, scale, location or other characteristics of the associated facilities” then the Commission can revert to the more general standard when assessing the effect of the associated facilities on the scenic character of the affected area.

One of the issues that the parties and the Commission will be struggling with going forward is how to comprehensively analyze scenic impacts.  Wind energy development, of necessity, includes associated facilities.  How exactly do you go about erecting the turbines without the roads to transport the turbines in the first place? Better yet, once there, how do you collect the power generated without lead lines and substations?  Should the various parts of a single, cohesive development be judged with two very different standards?

LURC was clearly in a difficult position when grappling with whether to apply the exception.  The language of WEA lacked guidance on what sort of fact based criteria should be considered in determining whether the exception applies.  In the end, in a decision of first impression, LURC opted to apply the exception so that associated facilities will be evaluated by a different scenic standard from generating facilities.    The decision was hailed by wind opponents but the ultimate result of the decision has to be determined.  What is needed, by either LURC or the legislature, is clear guidance and a meaningful standard on when the exception should apply so that all parties can move forward with a sense of consistency on what standard will be applied to a project.

At the end of the day Wednesday, Attorney General William Schneider sent a response to the Emily Cain, Democratic minority leader, declining her request that the Attorney General prepare an opinion regarding the continued authority and eligibility of Darryl Brown to serve as Commissioner of the DEP.  The Attorney General stated that because his office was involved in the preparation of the response by Commissioner Brown to the EPA with respect to federal law and that “[a]ny final response to the EPA will be made through this office,” it was not appropriate for the AG’s office to issue a separate opinion.

It’s difficult to ascertain what the Attorney General actually is saying here.  If he is saying that the AG’s office will be independently reviewing Commissioner Brown’s response, and particularly the facts as to whether more than 10 percent of Brown’s income over the past two years was derived from work for clients under the Clean Water Act, before it goes to the EPA in order to determine compliance with Maine law, then we applaud him for finally addressing this issue.  If, as suggested in yesterday’s article in the Portland Press Herald, he is saying that the Attorney General’s office will be acting as Mr. Brown’s lawyer in responding to the petition filed with the EPA, then we strongly disagree with that course of action.  At a minimum, the Attorney General should clarify exactly what role his office will play.

It is our opinion that the proper course for the Attorney General is to conduct a detailed analysis of the facts that Mr. Brown collects and presents concerning his income sources over the last two years.  If that review indicates that he has not exceeded the 10 percent threshold, then Mr. Brown should continue with the important work of the DEP.  But if the data shows that he crossed that threshold, then Mr. Brown should resign.  In either case, a speedy and transparent resolution of this issue is paramount.

ME DEP Commissioner Darryl Brown (Photo credit: maine.gov)

CLF is once again calling for increased transparency from the LePage Administration, this time with regard to whether or not Darryl Brown, who was confirmed by the Senate last month as Governor LePage’s appointment to be commissioner of Maine’s Department of Environmental Protection (DEP), is eligible to stay in his current position according to State and federal law.

Brown is the founder and remains the sole shareholder of an engineering and land-use planning firm that assists developers and industry obtain permits from the DEP and EPA.   At his confirmation hearing in January, Brown said that between 25 and 35 percent of his firm’s work involved DEP permitting.  Under state law, (38 MRSA $ 341-A(3)(B)), anyone who has received at least 10 percent of their income in the last two years directly or indirectly from projects permitted under the Clean Water Act are not eligible to serve as DEP commissioner.

The question of Mr. Brown’s eligibility to serve as Commissioner was first raised by former CLF staff attorney Steve Hinchman on behalf of the Androscoggin River Alliance in a February 7 petition filed with the EPA under a CWA provision that is similar, although not as broad, as the Maine statute.  Importantly though, both provisions use the same 10 percent threshold test.  EPA has requested that Mr. Brown provide information by April 15 to determine whether that threshold has been crossed.  Maine’s Attorney General and the Governor’s office have refused to say whether they have even met to discuss the situation, never mind how they intend to resolve it.  As an independent Constitutional officer, CLF has called upon the Attorney General’s office to provide a formal opinion as to how the law applies to Commissioner Brown and whether he has crossed the 10 percent threshold in the last two years, a call formally echoed by the House Democrats on April 5.

CLF will continue to push for a fair and speedy resolution of the issue, whatever that resolution might be.  CLF is not pushing this issue in order to disqualify Commissioner Brown nor to make a statement as to his performance as Commissioner.  Rather, we’re pushing to make sure that the law is interpreted and applied correctly.

It is possible that even though 25-35 percent of Brown’s was related to DEP permitting work but only 10 percent of his work was related to Clean Water Act permits.  But there will be no confidence in such a conclusion until a transparent and thorough analysis is conducted by the lawyers for all of Maine’s people, the Attorney General.

Portland Head Light, marking the southwest entrance to Portland Harbor (Photo Credit: Maine Department of Conservation)

The success of the new sectors approach to groundfish management, in which fishermen fish in community-based cooperatives (“sectors”) allocated a share of the annual catch limit in the fishery, is becoming more and more recognized as politicians such as Maine Congresswoman Chellie Pingree are speaking out in favor of the new system. Today, Congresswoman Pingree issued a press release declaring that the new sector regulations are working and noting that under the sector system, revenue for Maine fishermen is up over the previous year. The press release, which can be read in full here, also notes that Congresswoman Pingree spoke with Eric Schwaab, the top federal fisheries regulator, to reinforce her support for the current system and ask him to keep the regulations in place. A recent article in the Portland Press Herald also offered evidence of sectors’ success with quotes from a Maine sector fisherman saying that the new program has allowed fishermen to earn more money and reduce bycatch. The article also noted that Maine Senator Olympia Snowe recently asked federal regulators to continue with the sector system. CLF has long been on the record in support of Amendment 16 and the sector management plan it created, and it’s certainly encouraging to hear our local leaders and fishermen agree that sectors are helping to rebuild New England’s groundfish stocks and sustain its coastal communities.

In honor of the 41st anniversary of Earth Day, CLF Board members from across New England have banded together to make an extraordinary $41,000 investment in CLF’s – and our region’s – future. Every new or increased gift you make now through Earth Day – April 22– can be matched, dollar-for-dollar, up to $41,000.

Your gift today will go toward solving the region’s toughest environmental problems, and help us ensure a healthy, thriving New England for generations to come. From Maine to Rhode Island, CLF stands up for your favorite places, for the health of your families and your communities, and for the prosperity of our region. Since the last Earth Day, we:

• Cleaned up the air in Somerset, MA by closing the doors on an old, polluting coal plant
• Won tougher standards for phosphorus pollution in Lake Champlain, VT
• Preserved the fragile ecosystem of Great Salt Pond on Block Island, RI
• Saved Mainers millions of dollars on electricity infrastructure
• Helped NH cities and towns save energy and money by increasing energy efficiency

As Earth Day approaches, we are reminded that around the world and right here in New England, our land, our oceans and our air are in peril. On the heels of the 2010 elections, many in the new Congress are pursuing a clear anti-environment agenda, one that cuts directly to the core of the most fundamental protections for our health, safety and well-being. With leadership in Washington sorely lacking, CLF is uniquely poised to take the reins in protecting New England.

Today, we are asking you to help us continue our progress by taking part in our Earth Day Challenge. Your commitment enables CLF to safeguard our oceans, clean up our lakes, rivers and forests, promote clean energy innovations and build healthy, livable communities. We hope you will take part in our Earth Day Challenge by making a donation today to help CLF protect our small but mighty corner of the world.

The Transportation Committee voted unanimously yesterday during a work session on the ZOOM bus bill that the bill “ought not to pass.” The vote, while unfortunate, does not permanently end the ongoing discussion on how to best address Maine’s growing transit needs.  Procedurally, consideration of funding for any expanded ZOOM bus service will be folded into an omnibus bill that will require the Transportation Committee to make difficult decisions on how the Maine Turnpike Authority should spend its money.

Capital expenditures will face increased scrutiny in the wake of the appointment of Interim Executive Director (IED), Peter Mills.  In that budget process, buses will be pitted against bridges.  Mills has made it clear that he needs a clear sense of exactly what is expected from the MTA fiscally and for some serious prioritization to take place. In recent weeks, Mills’ actions have been resonating through the gilded halls of the MTA. He canceled a MTA employee banquet. He donated his “free” company ride to work crews, and he canned all those pricey external lobbyists. In short, he is the antithesis of his predecessor. For those of us advocating for accessible transit options, we can only hope that his new vision extends to how Mainers efficiently move around the state.

Ten years from now, we can’t afford to all be wondering why we can’t get there from here without jumping in our cars. Reliable, cost-effective, accessible transit between the most populated and most productive economic hubs is critical and CLF remains committed to making that happen. Please join us for the ride.

As part of the national effort to streamline and improve regulations launched by President Obama in an Executive Order the Environmental Protection Agency is soliciting comments on what regulations should be “modified, streamlined, expanded, or repealed” — so tell them what you think! They have a webpage that explains what they are looking for and provides an opportunity to submit comments online.

At a recent “listening session” held in Boston CLF offered these thoughts to EPA.  The deadline for comments is April 4, 2011– let your voice be heard !

Atlantic cod

CLF has been working for twenty years to end overfishing in New England and to rebuild the imperiled fish populations that are the foundation of our regional fishing future. The New England fishing industry was subsidized to grow so big that its capacity to catch fish exceeded the capacity of the ocean to produce fish, and historic lows of fish populations (determined using data that span many generations) were reached in the mid-1990s. Since that time, the struggle to re-balance fishing effort with natural reproduction levels has been economically painful, and with few viable, options many fishermen have been forced out of the business or into other fisheries.

We at CLF see some light at the end of the rebuilding tunnel now. Fish populations are coming back, and in some cases, like haddock, they are fully rebuilt. Others, such as Atlantic cod, won’t be fully rebuilt until 2026, but they are gaining ground. The most recent fishery management plan, Amendment 16, helps ensure the continuation of this rebuilding trend. This plan is being legally challenged by New Bedford and Gloucester and some others. CLF is for the first time intervening in a court action on behalf of the government to defend this management plan, which ends overfishing, establishes enforceable quotas on fishing, and offers new flexibility to fishermen in how and when they fish.

CLF is not alone in our optimism that Amendment 16 finally is creating a future for the fishing industry. For an interesting perspective from one of Congress’s great ocean champions, former Representative Tom Allen, read this op-ed he authored in the Portland Press Herald. In his writing, Tom displays the vision, the compassion, and the judgment that convinced his constituents to send him back to Congress time after time. He offers a different perspective on the doom-and-gloom that occupies much of the slanted reporting that some local papers have been carrying.

Where is Maine’s future going? Regardless, it’s going there on a ZOOM bus. Or at least, that’s the hope of the 26 co-sponsors of LD 673, the bill that proposes to expand the ZOOM bus system to serve additional locations based on rapid growth in demand. The ZOOM bill was the focus of a well-attended press conference held today at the state house in Augusta by the Maine Alliance for Sustainable Transportation (MAST), the steering committee of which includes CLF’s own Jane West. The press conference featured speeches by three of the bill’s co-sponsors–Rep. Bradley Moulton (R-York), Rep. Ben Chipman (I-Portland) and Sen. Justin Alfond (D-Portland)–as well as other local transportation advocates. More >