My colleagues in CLF’s Rhode Island office have been doing some important work that deserves attention this legislative session. Two of their efforts stand out: opposing the governor’s attempt to create special legislation to import power from Hydro-Quebec, and opposing the Rhode Island House leadership’s attempt to create a state Commerce Department that would take over permitting functions from the Department of Environmental Management and Coastal Resources Management Council.

Rhode Island State House, courtesy of Mr. Ducke @ Flickr

You’ve likely read more here (or here, or here) about Hydro-Quebec. The company, which (unsurprisingly, given the name) produces power from large-scale hydroelectric dams located throughout the Canadian province of Quebec, has been making a strong push to sell this power to states throughout New England. Hydroelectric power might not be so bad on its own, but Hydro-Quebec has some serious issues. Not least of these is that the most prominent proposal for transmitting additional power from Quebec to New England is a proposed transmission project through New Hampshire – the Northern Pass – that is being developed by New Hampshire’s dirtiest utility and is, in its current form, a deeply flawed proposal that may not provide meaningful environmental benefits. And, also distressingly, Hydro-Quebec has sought special legislation in each of the states it has been courting.

Here in Rhode Island, the governor has been pushing one such piece of special legislation; CLF Staff Attorney Jerry Elmer has been pushing back. The governor’s bill would require National Grid (Rhode Island’s only major electric utility) to solicit proposals and then enter into a long-term contract for a large-scale, 150-megawatt hydroelectric project. This requirement would not only displace but likely eliminate local, small-scale renewable projects that the current long-term contracting statute was designed to benefit. At the same time, it would likely drive up energy costs, sending Rhode Island dollars to Canada. And, again, importing more power from Quebec through this mechanism seems calculated to advance the poorly conceived Northern Pass project in New Hampshire. As Jerry told the House Committee on Environment and Natural Resources, it is rare that environmental organizations, energy utilities, existing renewable and conventional power plant owners, and ratepayer advocates unite so seamlessly and forcefully as they have in opposition to the large hydropower bill. And the representatives from these diverse interests all recognized Jerry’s leadership, frequently introducing their own testimony with the phrase, “As Mr. Elmer said …” – certainly a sign of effective advocacy.

Meanwhile, Rhode Island House leadership has been touting an “Economic Development Package” of bills designed to enhance the business climate in Rhode Island. Unfortunately, one of these bills would move DEM’s permitting functions and all CRMC programs and functions to a newly created “Executive Office of Commerce.”  The purpose of these moves would be to ensure that environmental permitting delays do not hold up business development.

At a hearing before the House Finance Committee, CLF Vice President Tricia Jedele pointed out the many reasons this proposed bill makes no sense whether viewed through the prism of policy or law. (You can view her testimony here, beginning midway through minute 162.) The bill ignores the reasons for permitting delays under the current regime: some delays are the result of the severe staff cutbacks DEM has suffered in the last several years; others are perfectly justified as a way to protect Rhode Island’s greatest asset – its natural resources – against exploitation. Moving permitting functions to a new Executive Office of Commerce would not restore DEM staff or better prevent exploitation.  Moreover, the bill suggests a tension between business and environment, even though a robust business climate and a clean, healthy environment can peacefully coexist under an adequate permitting regime. Perhaps most importantly, though, the bill could throw Rhode Island’s environmental permitting programs into total disarray. Many permitting programs are founded on authority delegated to the state by EPA under a host of federal environmental laws. These programs are subject to EPA oversight, and tinkering with them could easily result in EPA’s withdrawing approval and taking over permitting functions itself. Needless to say, this is not the goal of the commerce bill. Instead, Tricia told the Finance Committee, a simple solution would be to leave DEM and CRMC’s functions alone, to staff them adequately, and to add staffers to the new Department of Commerce who can help guide businesses through the permitting process. This argument was well-received, and CLF now has the opportunity to work with the House to reform the bill.

Again, my colleagues have been too busy doing this work to call attention to it, but I think it’s important to take a moment to recognize just how valuable they are to Rhode Island and its environment.

In 2003, Champlin’s Marina filed its request with the Coastal Resources Management Council (CRMC) to expand its marina in Block Island’s Great Salt Pond. At 10 years (and still running), this is probably CLF’s longest-running active litigation. This post is written to apprise you of the latest developments in this continuing saga.

Background

You may recall that in January 2011, the full CRMC voted unanimously to deny Champlin’s a permit to expand its marina in the Great Salt Pond. Champlin’s appealed to the Superior Court, as it had a legal right to do. In the Superior Court, Champlin’s filed a brief raising a rather curious issue: Champlin’s claimed that it had suffered a violation of its Fourteenth Amendment equal protection rights – because CRMC had granted a permit for Payne’s Dock to expand, but had denied Champlin’s application to expand. The Superior Court decided that Champlin’s civil rights claim should be heard first in the CRMC (and then be heard again in the Superior Court). As a result, the Champlin’s case is now simultaneously in two different venues: Superior Court and CRMC!

February 12 Hearing

The most recent hearing before the CRMC was earlier this week , Tuesday, February 12. As usual for these Champlin’s hearings, there were quite a few island residents present to watch the proceedings.

At the start of the meeting, CRMC Chairwoman Anne M. Livingston addressed a motion by Champlin’s that she recuse herself from the case because she had spoken about the case to a former CRMC member last December at a social gathering. Livingston acknowledged that her comments had been “indiscreet” (her word). She said that she was confident that she could act impartially in the matter; but she said she would recuse herself “in an abundance of caution.” Livingston then left the hearing for the rest of the evening.

The main witness on February 12 was Kenneth W. Anderson, chief engineer for the CRMC. Anderson testified that he has worked on every marina application that has come before the CRMC over the last two decades, including both the Champlin’s and Payne’s Dock applications.

Anderson testified that the procedure that CRMC used for handling these two applications were exactly identical. In both cases CRMC analyzed the application in light of the controlling CRMC regulation in order to determine whether the (respective) application comported with the regulation. Anderson testified that there was a very simple reason that the Champlin’s application was rejected while the Payne’s application was approved: Champlin’s application violated the applicable regulation; Payne’s application did not. That is, the reason the two applications had different legal outcomes was because the law required different outcomes – not because of disparate treatment or prejudice.

More specifically, Anderson testified about four major differences between the two different applications:

• CRMC regulations require all marinas in the state to make efficient use of existing facilities. Anderson testified that Payne’s makes efficient use of its existing space, but that Champlin’s is grossly inefficient. Thus, the regulation requires Champlin’s to make more efficient use of its present space before expansion can be allowed.

• Payne’s proposed expansion did not impinge on existing mooring fields, but Champlin’s proposed expansion did impinge on existing mooring fields.

• Payne’s proposed expansion would not have an adverse impact on safety of navigation though the Great Salt Pond, but Champlin’s proposed expansion would have an adverse impact on navigation safety.

• Finally, the size and scope of the proposed expansions were vastly different: Champlin’s proposal was, in fact, ten times the size of the proposed expansion. In a small area like the Great Salt Pond, Anderson testified, this factor is of major importance.

What’s Ahead

The CRMC had hoped to finish the hearing on February 12, but it came nowhere close to that goal. Champlin’s lawyer, Bob Goldberg, did not even finish his cross-examination of Kenneth Anderson; there are also more witnesses on both sides yet to be heard. The next hearing date was scheduled for Tuesday, February 26, at 5:15 PM. (If you plan to attend, check the CRMC website for confirmation of meeting time and for details on meeting location.) After the hearing is over, the parties will be given time (probably six to eight weeks) to brief the equal-protection issue.

I remain very confident that the CRMC will advise the Superior Court that there was no violation of equal protection in the cases of Champlin’s Marina and Payne’s Dock. Simply put, the different CRMC decisions in the two different cases was a result of different facts in the two cases, not a result of prejudice or civil rights violations. That is, the reason that Champlin’s will not be able to prove that the differing CRMC decisions were a result of a civil rights violation is that there are no facts to support that argument.

When the case returns to Superior Court, Judge Kristin Rodgers will also have to rule on Champlin’s equal-protection claim. Based on the facts in the record, I am confident that she too will rule against Champlin’s.

After Superior Court, Champlin’s may attempt to appeal (yet again!) to the Rhode Island Supreme Court. Unfortunately, CLF’s longest-running active case shows no signs of ending any time soon.

Expensive Litigation

Champlin’s has shown just how lucrative it expects its proposed marina expansion into the Great Salt Pond to be. Champlin’s has no fewer than three lawyers on its side, and the case has already gone to the Rhode Island Supreme Court more than once. Litigating this case is, of course, expensive for CLF as well. We have been deeply grateful for your past financial support, because that support has enabled us to stay in this long fight. Please continue to support CLF’s Champlin’s litigation. You can do so here, on our website.

Champlin’s Marina may be CLF’s oldest active case. Originally filed in 2003, the case has been to the Supreme Court (more than once), Superior Court (more than once), and the Coastal Resources Management Council (CRMC) (more than once).

The most recent hearing before CRMC was Tuesday evening, July 31, 2012. Here is how this came about.

In January 2011, the full CRMC voted unanimously to deny Champlin’s a permit to expand its marina in Block Island’s Great Salt Pond. Champlin’s appealed to the Superior Court, as it had a legal right to do. In the Superior Court, Champlin’s filed a brief raising a curious issue: Champlin’s claimed that it had suffered a violation of its equal protection rights because CRMC had granted a permit for Payne’s Dock to expand, but had denied Champlin’s application to expand.

In the Superior Court, CLF argued that, for two different reasons, Champlin’s should not be permitted to make this argument:

• As a strictly procedural matter, Champlin’s had not included this argument in its Complaint; and court rules usually prohibit arguing issues not presented in the Complaint.

• As a substantive matter Champlin’s had already presented its equal protection argument in court and had had the argument dismissed; raising the same losing argument again was frivolous and abusive.

You can see CLF’s Superior Court brief on this subject here.

The Superior Court Judge ruled that Champlin’s could at least try to present its equal-protection argument, but that Champlin’s had to do so first in the CRMC. So the Judge sent the case back to the CRMC. That is how we got to the CRMC on July 31.

The hearing was long and contentious. Champlin’s lawyer tried repeatedly to put improper matters into the record. Objections to Champlin’s improper actions were made by lawyers on our side, and those objections were sustained by the CRMC. Evidently deeply frustrated, Champlin’s lawyer lost his temper and became insulting toward members of the CRMC.

At the close of the hearing, it was clear that Champlin’s would not be successful in its efforts to have the CRMC rule that Champlin’s had suffered unequal treatment at the hands of the CRMC.  This is true for at least two different reasons:

• As a matter of fact and of law, Champlin’s did not suffer any equal protection violation.  While it is true that CRMC approved Payne’s permit to expand its marina and denied Champlin’s application, the two situations were entirely different.  Payne’s marina is at a different location than Champlin’s; Payne’s is a different size; Payne’s presents different environmental impacts and different navigational challenges than Champlin’s; and Payne’s expansion does not impinge on other mooring fields as Champlin’s did. That is, the CRMC treated the Payne’s application differently than it treated the Champlin’s application because it was different – not because of improper bias.

• As a practical matter, Champlin’s lawyer only alienated and offended CRMC members with his rudeness. Shouting at CRMC members and interrupting them when they speak is not conduct likely to persuade skeptics of your position.

The next step in the process is that the parties will file written briefs. Champlin’s will try to persuade the CRMC that it (Champlin’s) was a victim of bias. This will be difficult for Champlin’s to do, because there is not a shred or scintilla of evidence of bias in the record. Objectors will argue that there is no evidence of bias. Briefing will take until mid-autumn. After the CRMC opines on whether or not Champlin’s was a victim of bias, the case will return to Superior Court, probably early in 2013.

Photo credit: Leslie Boudreau

CLF applauded today’s announcement of federal approval of Rhode Island’s Ocean Special Area Management Plan (SAMP). Developed by the Coastal Resources Management Council (CRMC) with extensive input from scientists and government, business and environmental stakeholders, including CLF, the plan aims to balance the protection of vulnerable marine habitats and wildlife with responsible ocean uses including the development of clean renewable energy. Read the full news release here.

This morning, CLF Rhode Island Director Tricia Jedele joined Governor Chafee and members of the National Oceanic and Atmospheric Administration (NOAA) at a press conference to celebrate the formal adoption of the SAMP, at which she reflected on this momentous achievement:

“Conservation Law Foundation is truly grateful to be included in today’s event – as grateful as we were to be a part of the transparent and inclusive SAMP planning exercise that produced this document.  It is a wonderful and amazing accomplishment that this comprehensive ocean use plan prepared by the smallest state in the country will now be used to help shape the future of sustainable ocean use in New England, including making the path straight for offshore wind energy and other important ocean uses.

So often referred to as merely “the SAMP,”  such a small name for such a massive undertaking, this document demonstrates that often the first step towards getting somewhere is simply deciding that you are not going to stay where you are any longer.

Rhode Island made the right decision. The State could no longer stay where it was.  It had to develop a response to the growing threat of climate change. It had to find new and sustainable ways to create economic growth. It had to protect its ocean resources for today and future generations. And, it had to develop a vision for the coordinated use of those shared resources. Because RI decided that it was time to move ahead, the State is now in a position to facilitate the speedy development of the renewable energy resources we need so badly, to foster the centuries old fisheries industry – an industry that makes us proud to call ourselves New Englanders, and to protect the critical and vulnerable habitat areas that keep our oceans healthy.

Not only is the SAMP a critical building block to the development of a regional comprehensive ocean management plan for New England and a milestone for Rhode Island’s ocean waters, but the SAMP is also a testament to the foresight and dedication of the people working for the State of Rhode Island.

CLF would like to share with you our sincere appreciation of the staff of the Coastal Resource Management Council, and the Coastal Resources Center of the University of Rhode Island, and the Council itself, for their enduring willingness to engage all of Rhode Island in this effort, to create a genuine sense of participation and a healthy and positive view of our ocean resources.  This team never backed down from a difficult question (even when the hour was late), never failed to receive and hear and learn from the many comments thrown their way (and CLF threw its fair share).  The State made a sincere effort to be responsive and to allow this ocean use tool to evolve in a way that reflected the science and the voices of all those organizations and individuals trying to shape it.

As a result of the State’s fearless approach to public engagement and science-driven planning, Rhode Island is now a national leader, with a plan that will serve as a model for the country.”

View the full transcript of Tricia’s remarks here.

Learn more about CLF’s ocean conservation work.

It was thrilling to attend the meeting of the RI Coastal Resources Management Council (CRMC) last night, where the Council voted unanimously to reject the application of Champlin’s Marina to expand by several hundred feet into the Great Salt Pond of Block Island. The vote probably brings to a final conclusion a lawsuit that CLF has been fighting for the last seven years in the CRMC, in the Superior Court, and in the R.I. Supreme Court.

Champlin’s originally filed its application to expand in 2003. In February 2006, the CRMC voted (the first time) to deny the application. Champlin’s took an appeal (as they were legally allowed to do) to the Superior Court.  They won the appeal in Superior Court and were granted the permit. CLF and the Committee for the Great Salt Pond appealed to the Supreme Court, where we won – and the case was remanded (sent back) by the Supreme Court to the CRMC for a new vote.

It was that vote that was taken last night.

CRMC member Bruce Dawson made the motion to reject the Champlin’s application outright.  He cited the unique ecological value of the Great Salt Pond, and concluded by saying he could not support this expansion.

A vote was taken on the Dawson motion to deny the permit.  It was approved 7 to zero.

What about an appeal?  While Champlin’s could appeal, any such appeal would almost certainly fail. Not only is this a very old case, but legally, any new appeal would be severely limited to only what has happened since the Supreme Court remand. Such a narrow time period provides almost no basis for an appeal.

The meeting was well-attended. Despite the impending storm, the auditorium at the Narragansett Town Hall was almost full. Finally, I must say that there was an outpouring of warm feeling toward CLF and the Committee for the Great Salt Pond. After the meeting, a steady stream of well-wishers from the Island came up to thank the lawyers on our side. After a very long (and very difficult) litigation, this was enormously gratifying.