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.

Last week I attended the Ninth Annual Rhode Island Local Food Forum, organized by Farm Fresh Rhode Island. The forum’s theme was “Center of the Plate,” reflecting its focus on local protein production. Particularly enlightening was a panel discussion whose moderator, academic chef Bill Idell, posed questions that resonate across the region.  These questions ultimately boil down to two big ones: First, what does a sustainable food system look like? And second, how can we make one happen?

The panel’s meat experts – local guru Pat McNiff of Pat’s Pastured and Mel Coleman from national good-meat powerhouse Niman Ranch – agreed that sustainable meat means raising animals in their natural habitats (not concentrated feedlots) and in a way that feeds both animals and soil. The panelists also highlighted that sustainable food systems require local capacity because geographically concentrated animal operations are at risk from extreme weather: last summer’s drought, for example, “force[d] livestock producers to liquidate herds because feed [wa]s too expensive.” All this means that local meat is not just grown in a place, but it also grows that place by enriching both land (ecologically) and community (economically).

Building capacity for local meat is tough, however, when farmers have limited access to land. This is the case in Rhode Island. Not only is land itself expensive here (as throughout New England), but property and estate taxes can make it almost impossible to keep productive land in agricultural use when it is more valuable as land for development (and is assessed as such for tax purposes). We at CLF are looking closely at this issue.

Moving from the land to the sea, the discussion yielded different insights from the panel’s seafood experts.  “Eating with the Ecosystem” founder Sarah Schumann and seafood-aggregation specialist Jared Auerbach of Red’s Best noted that sustainability means something much different for seafood than for meat, because so many fish and shellfish stocks are wild. They agreed that a sustainable seafood system should be biodiverse – instead of a singleminded focus on cod, for example, a sustainable system would mean sending more fluke, skate, scup, and squid to market. Diversifying the types of seafood we typically eat would allow overfished stocks to recover, and would also contribute to the resiliency of ocean life in the face of climate change and ocean acidification. Furthermore, a sustainable seafood system would mean – to borrow from Sarah Schumann – eating with the (local) ecosystem. Seafood brought in to local ports is easy to trace and to verify species, boat size, and fishing method – factors that are federally regulated but relatively easy to lose track of as more steps are added to the supply chain. Encouraging demand for diverse seafood products, localizing seafood markets with robust tracing and verification systems, and streamlining state and federal fisheries regulations would all help foster local, sustainable seafood systems.

All four panelists, farmers and fishers alike, agreed on another point: we need local, sustainable food systems both to limit and to respond to harms wrought by carbon dioxide emissions. These emissions cause climate change, leading to droughts and other extreme weather that disrupts agriculture; these disruptions, in turn, require robust local systems to add resilience to the global food system. And carbon dioxide emissions also cause ocean acidification, which poses an immediate risk to shellfish and a long-term risk to all ocean life.

All this highlights the importance of CLF’s farm-and-food and climate-change programs. Our work shutting down coal-fired power plants and promoting renewable energy helps to limit emissions that threaten our current food system (not to mention our planet). And our farm-and-food program promotes local and regional food systems that provide a broad range of environmental benefits. As CLF’s newest staff attorney, I am excited to be joining these efforts here in Rhode Island. The Local Food Forum made it clear that there are many good ideas brewing here – we just need to do the work to get our food policy right.

After extensive discussions with CLF, Deepwater Wind has agreed to voluntarily adjust its planned construction period to minimize potential impacts to migrating North Atlantic Right Whales -- like this breaching beauty here.

Deepwater Wind is taking exciting new steps to build on last month’s historic agreement to protect critically endangered right whales while developing offshore wind projects. The offshore wind developer, expected to begin construction on the proposed Block Island Wind Farm in 2014 or 2015, has announced an agreement to voluntarily adjust its planned construction period to minimize potential impacts to migrating North Atlantic right whales. This announcement follows extensive discussions with CLF, and shows a willingness to go above and beyond to protect North Atlantic right whales in the pursuit of renewable energy.

In order to fasten the five proposed turbine steel foundations into the steel floor, the developer must undergo pile driving, a process of hammering steel pipes up to 250 ft into the ocean floor. This stage of production could potentially harm migrating right whales, which have been documented feeding in Rhode Island Sound throughout the month of April. Deepwater Wind has adjusted its construction schedule accordingly, deciding that no pile driving will occur before May 1 of the project’s construction year.

Deepwater Wind’s decision to alter its construction schedule for the Block Island Wind project follows another agreement to adopt protections for endangered right whales in federal waters. A first-of-its kind coalition of offshore wind developers and environmental organizations agreed to adopt voluntary measures to protect right whales while expediting responsible offshore wind development. This historic agreement sets out measures that developers will voluntarily implement over the next four years in the Mid-Atlantic Wind Energy Areas stretching from New Jersey to Virginia. In it, key ocean stakeholders have shown great leadership in setting a model for future coalitions, and they have demonstrated a commitment to developing clean energy projects while protecting critically endangered species.

On June 26, 2011, Governor Chafee signed into law the “Distributed Generation Standard Contracts Act.”  The bill had passed both houses of the General Assembly unanimously. The “distributed generation” in the title of the law refers to small, local renewable energy projects.

The new law was designed to do three things: (1) increase the number of small renewable energy projects that are built in Rhode Island; by (2) making it easier, quicker, and cheaper for developers of these projects to get contracts to sell their electricity to Rhode Island’s dominant utility, National Grid; and (3) get those renewable energy projects distributed into more of Rhode Island’s cities and towns.

Not every law passed by the General Assembly works out the way it was meant to, but the Distributed Generation Standard Contracts Act has been phenomenally successful in accomplishing each of its three goals.

Previous renewable energy laws in Rhode Island have worked the way they were intended: to get National Grid to buy more and more of its electricity each year from clean, renewable energy sources. But Rhode Island’s previous renewable energy laws also had a significant flaw: they worked very well for big projects, like Deepwater Wind’s proposed offshore wind farm, but they worked less well for small projects (like a town that wants to set up a single wind turbine at its town hall, as Portsmouth did). That is because under the prior laws, developers would have to hire a small army of lawyers to negotiate an excruciatingly long, detailed contract with Grid, setting forth everything from the price of the electricity to delivery schedule. (For example, the contract that Deepwater filed with the Public Utilities Commission on December 10, 2009 ran 62 pages in length!)  Hiring lawyers to negotiate a 62-page contract was just too time-consuming and expensive for a developer who had a small project.

The new law fixed that problem. As the name of the law suggests, it provided for a “standard contract” for developers of small projects. The standard contract was short, written in plain English, and easy to understand. In addition, the law provided for a standard price to be paid, and established a mechanism for setting a fair price for each different type of project – wind, solar, and so forth. These prices were designed to be high enough to get projects actually built, but low enough to protect electricity rate-payers.

And that is exactly how the new law has worked. In the 15 months since the bill was signed into law, National Grid has held three separate sign-up periods. To date, 18 separate projects have been signed up.  Each of these 18 separate projects will be built right here in Rhode Island. Thus, Rhode Islanders will directly enjoy the environmental and economic-development benefits of these projects. The main purpose of the new law, to get more local renewable energy projects built, has been accomplished – in spades.

The developer of each of these 18 projects got a simple, standard contract to sign, and will receive a set price for the electricity produced.  Thus, another one of the law’s purposes has been accomplished.

The projects themselves are located in Providence, East Providence, Portsmouth, Lincoln, Westerly, Bristol, West Greenwich, East Greenwich, Hopkinton, Middletown, Cumberland, North Kingstown, North Smithfield, and West Warwick.  This geographical distribution of new renewable energy projects was a third purpose of the law.

Rhode Island’s new Distributed Generation Standard Contracts Act has been so successful that it is becoming a model for the rest of the country. Renewable energy advocates in New York and Iowa are hoping to replicate the Rhode Island law in their states. The California Public Utilities Commission has circulated the Rhode Island law to its in-house legal staff. A group of Oregon legislators is poised to introduce a bill in the coming legislative session modeled after the successful Rhode Island law.

The Distributed Generation Standard Contracts Act is a classic win-win. It addresses the problem of climate change by reducing the carbon emissions that cause climate change. And it helps the Rhode Island economy by facilitating local development of renewable energy projects.

This is a law that Rhode Islanders can be proud of. Its enactment reflects well on our legislators (who passed it unanimously) and on Governor Chafee (who signed it into law). The law has been administered carefully and diligently by our Office of Energy Resources. And National Grid, which receives an economic incentive when projects start producing power, has worked conscientiously with developers to help developers succeed.

On September 26, 2012 I posted a blog called Thune For Thought, in which I wrote:

“At 2 a.m. on September 22, 2012, the United States Senate voted by unanimous consent that   U.S. airlines could choose to ignore the European Union’s requirement that all airplanes landing in the EU reduce their carbon pollution that is causing global warming. Either climate change is happening or it isn’t. But, once you look at the data, once you subscribe to the opinion that it is happening, you have an affirmative obligation to take all reasonable steps to responsibly address the problem. I understand that this is election season, and some of the Senate races are tight, and airlines can be powerful lobbyists, but, it is 2012 and an anti-climate emissions control bill is passing via unanimous consent in the United States Senate? Either climate change is really happening or it isn’t.”

Our climate champions across the nation abandoned their science-based advocacy about the reality of climate change and the extreme price tag that comes with our collective failure to act. They abandoned that advocacy immediately prior to the election, and disappointingly, during the election. They abandoned that advocacy even in the aftermath of the one-two punch of Super Storm Sandy and Nor’easter Athena.

Not a single elected official in Rhode Island, from the Governor to the delegation, has uttered the words climate change in any of these contexts.

After the November 6, 2012 election, nothing much has changed in Rhode Island or for the country in terms of political representation. Our delegation in Rhode Island remained the same: Reed, Whitehouse, Langevin, and Cicciline; our Governor remained the same: Chafee; our President: the same; and, the balance of power in the U.S. Senate and the House of Representatives remained the same: blue majority in the Senate, red majority in the House.

The take home message is simple: Averting the climate disaster can’t be about party politics. We all lose if that is where the battle lines are drawn on the single most important issue facing our country. Averting the climate disaster requires science and the courage to act on it.

Dear President Obama, start acting on climate change.
Dear Senator Reed, start acting on climate change.
Dear Senator Whitehouse, start acting on climate change.
Dear Representative Langevin, start acting on climate change.
Dear Representative Cicciline, start acting on climate change.
Dear Governor Chafee, start acting on climate change.
Dear Rhode Island House and Senate Leaders, start acting on climate change.

We need science and courage, not politics.

A cottage teeters on the shore at Roy Carpenter's Beach in South Kingstown, Tuesday, Oct. 30, 2012. Credit: NBC News 10

What do the 2010 March Floods, Hurricane Irene, and Tropical Storm Sandy all have in common? These three 100-year events (meaning there is a 1% chance of this type of storm happening once a year) have all occurred within the past two and half years.

Failing to change how we view significant storm events (e.g., it’s just a fluke), affects how well and whether we plan for future storm events. Viewing these storms as “just a bad run,” or “ a freak storm” denies the reality of a changing climate and its effect on weather, precipitation and the severity of storms. In this way, our point of view can threaten our ability to change our approach to development and planning in a way that preserves our assets for future generations. Ultimately this short-sighted point of view is used to justify an unwillingness to move away from static planning concepts, like planning for a 100-year flood, which, to be sure, allows for more development short-term, but, is of little use when planning the life expectancy of coastal development or construction already along our river banks and in our flood plains.

After the March 2010 floods submerged and disabled three major municipal sewer treatment facilities for more than a week, wiped out dams and bridges, destroyed homes and business built along the banks of the Pawtuxet River, and pushed massive areas of pavement up with surges of water from swollen rivers, and, after incurring hundreds of millions of dollars in damages, what did we do? We left our sewer treatment facilities where they were; continued to plan for and permit development for 100-year storms; rebuilt the bridges; repaved the parking lots that were built within the flood plains of major rivers; talked about how we could get environmental regulations out of the way of job creation and economic development, and; tried to get back to normal.

We did the same after Hurricane Irene (a category 1 storm that left half of state’s residents without power, many for more than a week, and which resulted mandatory evacuations for low-lying communities including Charlestown, Narragansett, South Kingstown, and Westerly over storm-surge related concerns. We fixed the roofs, removed the trees, restored power, and petitioned the coastal management agency for the construction of 202 foot seawall (price tag, about a million dollars) in Matunuck to guard against storm surge and erosion.

The goal always the same:  just try to get back to normal as quickly as possible.

Piles of sand plowed from Matunuck Beach Road, South Kingstown, Tuesday, Oct. 30, 2012. Credit: NBC News 10

In the immediate aftermath of Tropical Storm Sandy, our third major storm event in less than three years, and a storm that resulted in more serious damage in some of our coastal communities than was experienced during the Hurricane of 1938 (portions of the seawall in Narragansett dislodged; homes and businesses shattered all along the coast; infrastructure, like the bath house and boardwalk in Galilee, washed away; mounds of sand covering roads throughout South County, and breakers compromised) – maybe we should start asking ourselves, “What is normal?”

Because to “get back to normal” under a planning regime and system-wide frame of mind that does not understand, appropriately consider, or strategically plan for the effects of climate change on our coastline, our natural resources, our communities and our economy; well, that is not  “normal” at all. If all we’ve learned as a result of these past three storms is to get milk and water, buy a generator, install a sump pump, get flood insurance, trim down branches and trees that might fall on power lines; and bring in more line and more contractors to assist with power outages, then we haven’t really learned anything at all.

Does it makes sense to rebuild infrastructure, at a significant cost to the taxpayers, in areas that we know will continue to be vulnerable? Should we seize the opportunity to undo a past planning decision that undermined the ability of a natural system to absorb flooding or protect against storm surge and erosion, like removing parking lots that were paved over marshes, and wetlands, or removing hard shoreline structures that accelerate erosion along the beaches? Should we be planning for 500-year or 1,000 floods (the Netherlands and Japan protect their residents against a 10,000-year flood)?

We cannot continue to plan and build according to standards that don’t contemplate climate change and its effects on our built and natural environment. Ignoring the policy and economic conversations that need to happen about the costs of coastal protection versus costs of land-use relocation as well as the potential for movement of populations and infrastructure is irresponsible and will come at a great price.

Recently, Rhode Island Resource Recovery Corporation attempted to make recycling easier for Rhode Islanders by creating “single-stream recycling.” Now households do not have to separate paper from plastic – everything can go in the same bin and other items can also now be recycled, such as plastic cups, tissue paper and just about any plastic container 2 gallons or less in volume. Sounds simple and great, right? Sadly, it hasn’t caught on yet.

The state’s recycling rate is still only at 15.9 percent. And the state’s largest city, Providence, is at the bottom of the barrel when it comes to recycling at all. With the lowest rate of diverting materials from the Central Landfill (18.2%), Providence is bringing down the state’s overall recycling rate. To see how your city or town is doing visit this website.

Providence Mayor Angel Taveras has stepped up to the plate by launching the Neighborhood Recycling Challenge (running until September 7) to get more neighborhoods to recycle.  Five “teams” or neighborhoods will be competing for five new trees and a neighborhood barbeque if they improve their recycling rate by the largest margin. The goal is to get the recycling rate up to 25 percent.  It’s not only better for the environment; the city saves $250,000 in recycling costs.

For those living in Rhode Island: help your neighborhood, your city, and your environment. Get your recycle game on.

Last week the development of wind energy offshore Rhode Island and Massachusetts moved one step closer with the publication of an environmental assessment (EA) by the Department of the Interior, Bureau of Ocean Management (BOEM) regarding commercial wind lease issuance and site assessment activities on the Outer Continental Shelf (OCS). The purpose of the EA is to determine whether or not issuance of leases and approval of site assessment plans within a designated area offshore Rhode Island and Massachusetts would lead to reasonably foreseeable and significant impacts on the environment. The EA is available online here.

BOEM will accept public comments on the EA and then will determine whether or not to issue a finding of No Significant Impact or conduct additional analysis under NEPA. The deadline for public comments is August 2.  CLF is reviewing the 379-page EA, with a particular focus on the impact to sensitive marine habitats, fish populations and fishing activities, water quality, and marine mammals – particularly the endangered right whale – and sea turtles. CLF will submit comments. CLF believes that offshore wind deployment is a critical clean energy supply resource which must be deployed expeditiously and in significant quantities, in a manner that protects ocean wildlife and sensitive seafloor habitats.

BOEM is hosting two public information sessions to provide an overview of the EA and the next steps in the leasing process. At these sessions, BOEM will accept comments and address questions, so CLF encourages interested members to attend.

Public Information Sessions:

Monday, July 16, 2012, 7:00 p.m.
University of Rhode Island
Coastal Institute – Hazard’s Room
218 South Ferry Road
Narragansett, Rhode Island 02874

Tuesday, July 17, 2012, 7:00 p.m.
Fairfield Inn & Suites
185 MacArthur Drive
New Bedford, Massachusetts 02740

The Senate Study Commission on Sustainable Transportation Funding met on Friday, June 1, for what may prove to be its last meeting for this legislative session. (I sit on the Study Commission as a full voting member.) At the June 1 meeting, the Study Commission approved four separate recommendations; each separate recommendation was approved by a vote of 9 members in favor, 1 member opposed. All four recommendations were deeply disappointing.

Unfortunately, the gist of all four recommendations is that the Study Commission recommends waiting until after RIPTA completes its anticipated Comprehensive Operations Assessment (COA) before the Study Commission recommends any new, significant, sustainable funding for RIPTA. The fourth recommendation sums up the gist of all four: “Upon completion of the COA and pricing analysis [that is, zone fares], develop a comprehensive, sustainable funding approach for inclusion in the FY 2014 budget.”

In other words: nothing meaningful should happen now; let’s wait until after the COA is done; and then (maybe) recommend something in the future. The inevitable result will be that RIPTA will face major service cuts as early as the end of this calendar year. This will directly hurt Rhode Islanders who depend on RIPTA to get to jobs, school, medical appointments, or recreation. And it will hurt the environment, because expanding public transit is a major way to reduce carbon emissions and air pollution.

I was the sole Study Commission member to oppose the four recommendations. I explained that there is no reason to wait until after the COA is done to recommend new, sustainable funding for RIPTA, because the COA will not provide any relevant, new information. We know why RIPTA experiences perennial budget shortfalls; it is due to two major factors:

• Declining yield on the gas tax, which is RIPTA’s largest single source of revenue; this yield declined 12.9% in just four recent years; and

• Rising diesel prices for RIPTA busses. Diesel fuel is RIPTA’s second largest expense (after personnel); and diesel prices have increased 100% since 2005.

The fact is that the COA will not add any new, relevant information about these critical issues.

We also know the options for new funding; again, the COA will not add any new, relevant information there, either. At the June 1 meeting, I suggested that the Commission endorse the O’Grady Bill, H-7581, as an alternative to the four pre-written recommendations.

Each of the four proposed recommendations was moved separately and voted on separately. All four of the proposed recommendations passed by votes of 9 in favor, one opposed. I was the sole dissenter in each case. After I had lost on all four proposals, I made a proposal for a fifth recommendation.

I proposed that the Study Commission re-convene in September, rather than in March/April, as it has in the past, in order to be ready earlier in the next General Assembly session with new funding recommendations for RIPTA. In effect, my proposal was a challenge to the Study Commission. I was saying: If you insist on waiting until after the COA to recommend more funding for RIPTA (despite my objection to the delay), then, at least, move quickly after the summer and be ready with recommendations early in the next legislative session. My proposal was approved unanimously.

All in all, this was a disappointing end to this year’s meetings of the Senate Study Commission on Sustainable Transportation Funding.

However, CLF will remain engaged on the transportation front. Here in Rhode Island, the transportation sector is both the largest source of carbon emissions and the fastest growing – so we must address transportation if we are to address climate change. When the Study Commission re-convenes after the summer we shall re-double our efforts to have the General Assembly revamp the broken and inadequate ways that RIPTA is funded.