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.

Counting Alewives at the Milltown Dam fishway on the St. Croix river in New Brunswick, Canada, Photo courtesy of the Portland Press Herald

Fish ladders and elevators “aren’t working like they’re supposed to, and fish aren’t making it to where they need to go.” So began a recent article in Science magazine. In many cases this assertion is spot on – but in others, fish passages have been remarkably successful. Maine has examples of both.

To find a faulty fish passage,  one need look only at the dam on the Androscoggin River between the towns of Brunswick and Topsham, Maine. The fish ladder at that dam quite simply does not work and the number of fish that successfully navigate its labyrinth is paltry. If anadramous fish like salmon, shad or river herring are ever to return to the reaches of the Androscoggin, significant changes will need to be made to that fish ladder. Better yet would be, where possible, the removal of dams through collaborative efforts like those that led to the success of the Penobscot River Restoration Trust’s efforts or the removal of the dam in Winterport several years ago.

On the other hand, fish ladders remain an important management tool in areas where dam removal cannot be achieved. Indeed, there are a few fish ladders that have been very successful at passing fish, especially when they are allowed to work. For example, in Maine fish ladders at the first three dams on the St. Croix River worked remarkably well – in just 5 short years of operation in the 1980’s, the number of alewives successfully surmounting the 3 dams via fish ladders went from 20,000 to more than 2.5 million. And in 1995, when, for reasons that had nothing to do with science or logic, a state law was passed closing two of the fish ladders, the number of alewives plummeted to less than 1000. Today, even after one of the fishways was allowed to be opened in 2008, alewives are still barred from 98% of the waters that they use to spawn. That’s why CLF will continue to fight to repeal that law, either through the Courts or with our allies in the Legislature.

That said, the data provided in the Science article is depressing. At three major rivers on the East Coast that less than 150 years ago had been teeming with anadromous fish – the Merrimack, the Connecticut and the Susquehanna – virtually no fish –  706, 86, and 7 respectively – passed through the fish ladders at those dams. The author’s call to remove those dams would no doubt increase those numbers significantly and should be pursued to the extent feasible. Alternatively, the fish passage at those and other dams should be evaluated as to effectiveness and those that fail as miserably as those on the Merrimack, Connecticut and Susquehanna, as well as the Androscoggin, should be repaired, modified or replaced with fish passage that does work, like that on the St. Croix.

It could be surprising to many people that in our complex and amazing world of ocean animals there are several creatures known for displaying the type of deep affection and commitment of which only romance novelists can dream. Tropical angelfish and at least one type of Australian seahorse are not strangers to life-long love beneath the waves. (And, by the way, is there any name more apropos to a day celebrating intimacy and devotion than that of the deep-sea sponge known as “Venus’s flower basket?”) There is even a small unglamorous freshwater fish known as the convict cichlid which pairs off into a crevasse made into a home to raise their children.

Without a doubt, our own Atlantic Wolffish exhibits the special bond of love suitable for Cupid’s attention. Male and female pairs (who reportedly mate for 3 to 6 hours at a time and practice internal fertilization, a rarity in fish) seek out their own special love nest under a craggy rock, or maybe down along the hull of a sunken wreck, just big enough to guard the egg mass laid by the female. The male wolffish, exhibiting no scientifically observed “commitment issues,” stands guard at his cave haven ensuring the protection of the growing larvae and juvenile offspring. The male is so devoted that he stops eating for as long as he is on guard, sometimes as long as four months. Not only is the wolffish pair committed to each other, they are highly loyal to their habitat.

Without a place to call their own, the wolffish love story could have an unhappy ending. With wolffish numbers having declined drastically in the last three decades, the connection between wolffish and their undisturbed habitat is even more important. Wolffish are still caught as bycatch in trawls and, possibly even more damaging to their long-term survival, their rocky habitat gets swept away by trawls and nesting areas can be buried in the sediment stirred up by trawling gear. Recreational anglers often catch wolffish, but it’s proven that the wolffish can be safely returned to the sea with the proper “catch and release” practice. (Wolffish do not have a swim bladder that “blows up” on the surface.) For both recreational and commercial fishermen in federal and state waters in New England it is illegal to possess or land Atlantic wolffish. If enforced properly, this can be a great step forward for wolffish conservation.

Now, it may be said that the Atlantic wolffish has a face that only its mother could truly love. But isn’t that the mystery of love itself – finding one’s counterpoint in the ocean of uncertainty can be anything but predictable.

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.

Some of New England’s best known estuaries include Casco Bay, the many small bays and inlets of Massachusetts’ shore, the Great Bay in New Hampshire and, of course, Narragansett Bay in Rhode Island. Estuaries are great places for recreation and tourism. Boating, bird-watching, and fishing are some of our favorite estuary pastimes. Not only are estuaries beneficial to us for relaxing and enjoying nature, they are extremely valuable and provide other services as well. They are natural filters – storing and trapping pollutants and sediments that come off the land, preventing them from reaching the blue water. They also provide protection from coastal flooding. With all these wonderful reasons, what’s not to love about estuaries!

CLF works to protect and restore these amazing and valuable places with a network of like-minded conservation groups across the nation. Restore America’s Estuaries is a national alliance of coastal conservation organizations committed to protecting and restoring the lands and waters essential to the richness and diversity of coastal life. The challenge we all face is to make sure our estuaries and other waterways receive the care and proper management they deserve. Restoring degraded streams and rivers is a great way to provide healthy estuaries and the benefits we love and depend upon. If you love estuaries too (and we know you do), then take a minute to share the love online through the I Heart Estuaries Facebook page. Let the Congress and the Administration know of your heartfelt desire to see New England’s estuaries receive better protection and stewardship.

February 8 - Fish Talk in the News – Friday, February 8 - In this week’s Fish Talk in the News, industry members respond to cod catch cuts; lobstermen discuss options for avoiding a glut; northern shrimp catches are low; new dogfish research says they don’t migrate as much as expected; Carl Safina supports groundfish closed areas; John Tierney introduces a new diaster relief bill, Vito Giacalone is exonerated by an independent review.

The storm surge from the Blizzard of ’78 split this Rockport, MA house in half. Photo from the Mass.gov Blizzard of ’78 Gallery

Originally posted Tuesday, February 5th

Sometimes hardy New Englanders take perverse pride in the bad weather we endure. But that didn’t stop us from getting very concerned when Sandy headed our way last October. And it didn’t help to prevent the tragic losses that piled up during the Blizzard of ’78, which formed off the coast of South Carolina 35 years ago today, then pounded New England for two days after that.

The Blizzard of ’78 was really more of a winter hurricane than a blizzard. And not just a hurricane, but a “bomb”  – a meteorological term that refers to how quickly pressure fell during the storm’s formation. People were caught unprepared for the rapidly deteriorating conditions, leading to dozens of fatalities on land and at sea. Not only were thousands of people stranded on the roads, unable to get to safety, but the suddenness of the storm took mariners by surprise as well. In his bestseller Ten Hours Until Dawn, New England author Michael Tougias tells the riveting and tragic story of what occurred as several vessels rushed to the aid of a heating oil tanker that was taking on water after running aground in Salem Sound. The tanker was fine in the end, but the Can Do, one of the boats that attempted to provide assistance, was not – sinking with all hands lost.

The overall devastation from the storm was enormous. Tougias describes the aftermath well:

“In Rockport, cars were flung into the Old Harbor along with a house. Bearskin Neck houses were crushed, then ripped by the seas, including the red wooden building known as Motif #1, a popular subject for artists.”

“Up and down the Massachusetts coast, seawalls were flattened and hundreds of residents became trapped in their houses, encircled by swirling water that prevented them from running to higher ground.”

“Particularly hard hit was Revere, just north of Boston and south of Salem… Three homes were totally leveled and several others suffered extensive damage from fire. However, it was the breaching of the seawall that did the most damage… The Beachmont section of Revere saw the worst devastation. Homes were bobbing down the streets, and many people thought they would literally be swallowed up by the sea.”

One of the reasons the destruction was so extensive from the Blizzard of ’78 was its horribly timed concurrence with an astronomical high tide. You may recall a more recent storm that visited our shores with the same bad timing.

Sandy reset our collective notion of “storm damage” in the Northeast. Most of us will never forget the images that scrolled across our screens that awful night (those of us that didn’t lose power, anyway), of subway tunnels flooding and horrible fires and a dark, so dark, New York City. More than three months later thousands of people are still suffering without heat or homes in Sandy’s aftermath. Nobody was really prepared for the scale of Sandy’s ravages. But Sandy was not a complete surprise. There have been some notable forerunners.

We’ve had our share of big storms on the East Coast. The Blizzard of ’78, of course, stands out. And 1938 is legendary for the Hurricane of 1938, or “The Long Island Express,” which rocketed up the coast at an unprecedented 70 miles per hour, taking out communications as it went, preventing people in its path from getting warning about the cataclysm that was headed their way.

1991 was an especially bad year – bringing us Hurricane Bob, the second costliest hurricane in U.S. history at the time, in mid-August, and the unnamed hurricane that sprang, very bizarrely, from the “Perfect Storm” that fall, which damaged parts of New England even worse than Bob had.

We know these big storms will come our way from time to time. We also know that our seas are rising – simply put, as they get warmer they expand. Disturbingly, we have recently come to understand that the sea is rising much faster in the Northeast than the global average. The ocean is coming closer, and the big storms will keep coming as well.  It’s time to get our act together and plan better for these big storms. We are weather-hardy in New England, but we are also smart enough to get prepared.

We can and should plan ahead. Employing the principles of regional ocean planning will help our coastal communities prepare for the next storm, using tools like the Boston Harbor Association’s model for “no regrets” adaptation to sea level rise, Massachusetts’ Storm Smart Coasts, and NOAA’s Hazard-Resilient Coastal & Waterfront Smart Growth, and building on lessons we are learning from our tempestuous history. We need a comprehensive, science-based, and participatory process that allows everyone who will be affected by decisions about our coastal areas to have a say in how we prepare for storms and sea level rise, and how we respond in the aftermath.

Hopefully it will be a very long time before we have to find out how ready we are for the next big storm – how well we have learned from the Blizzard of ’78, from Sandy, Bob, and the others. But, just in case we don’t have long to wait, let’s roll up our sleeves, get prepared, and make a plan for the worst.

The climate equivalent of calling the Fire Department is reducing carbon emissions to head off even worse global warming and the wide gamut of effects that we are feeling and will feel from that phenomenon. On the national level, our problem is that Congress is not sure what kind of Fire Department we should have – and in fact a powerful contingent of folks in Congress refuse to believe in the existence of fire.

But here in the upper right hand corner of the U.S., the Northeast and Mid-Atlantic, our state governments have been rolling the big red truck out of the garage and taking action to address the greenhouse gas emissions from power plants, a key source of this pollution causing global warming, by capping carbon emissions through the program known as the Regional Greenhouse Gas Initiative (“RGGI”).

Today, February 7, those states (including the New England states of Massachusetts, Maine, Vermont, New Hampshire, Rhode Island and Connecticut) announced an agreement  to strengthen that cap on carbon  from 165 million tons down to 91 million tons (2012 levels).

This step, along with associated refinements to the RGGI program, is an important step toward meeting the climate imperative of an 80% reduction in greenhouse gas emissions by 2050, but we temper our applause by clearly noting that more sweeping action will be needed to get there. Listen to the wise words of Jonathan Peress, my colleague and our lead advocate on RGGI from our official release marking this announcement:

“This is a very meaningful step in the evolution of RGGI and a powerful example of how markets can drive solutions to climate change,” said N. Jonathan Peress, VP and director of CLF’s Clean Energy and Climate Change program. “Over the past four years, the RGGI program has proven that putting a price on carbon emissions and using the revenues to expand energy efficiency and clean energy as part of our mix is a formula that works. The program refinements announced today will further accelerate the ongoing transition away from dirty and inefficient fossil fuel power plants to meet our energy needs. Once again, the Northeast and Mid-Atlantic states have demonstrated a path forward for others areas of the country.”

RGGI, the nation’s first market-based cap and trade program requires power plants to hold permits, known as “allowances,” for each ton of CO₂ they release into the atmosphere. Revenue from the sale of these allowances is reinvested in energy efficiency programs that reduce costs for businesses and make the states more competitive.

Peress continued, “We applaud the New England states for supporting and strengthening RGGI as an important tool in their toolkits for reducing greenhouse gas emissions and advancing a clean energy economy. The RGGI program has proven that carbon cap-and-trade programs can reduce carbon pollution while contributing to economic growth and prosperity. However, state leaders still have much to do to meet the emissions reductions levels dictated by science and our understanding of what it will take for our region to thrive in the face of climate change. Today’s action to strengthen the regional electric power plant cap-and-trade program is a step in the right direction, but we have a long way to go.”

The new cap level locks in emission reductions achieved to date, and continues to drive additional reductions through 2020. Since it was launched in 2009, economic experts say the increased energy efficiency that RGGI is driving has been generating greater rates of economic growth in each participating state.

How are PSNH’s coal plants like Mark Sanchez? (photo credit: flickr/TexKap)

Earlier this week, the Concord Monitor published a must-read editorial addressing PSNH’s future. Much like an earlier widely-printed op-ed on the subject, the editorial correctly describes the PSNH death spiral of escalating costs, fleeing customers, and dirty inefficient power plants kept alive by massive ratepayer subsidies.

The editorial also points out one key reason why PSNH’s argument that its plants are an insurance policy against high natural gas prices is increasingly off the mark: it ignores the damage that those plants do to the climate and to the environment. In 2012, despite not operating for much of the year, PSNH’s plants were nonetheless collectively the single largest source of greenhouse gas emissions in New Hampshire.

As time goes on, PSNH’s “insurance policy” argument only gets more specious. Relying on inflexible power plants that take many hours to start up and shut down is diametrically at odds with the dynamic and advanced electric grid that will help New England move toward a clean energy future and address concerns around the region’s increasing use of natural gas. We know what we need to do: the region needs to reduce energy demand through cost-effective energy efficiency investments, to deploy clean renewable technologies like wind that displace fossil fuel use, and to optimize the rules of the wholesale electric market to ensure smooth operation of the grid. Indeed, regional grid operator ISO New England’s recent market design efforts will almost certainly make poor-performing, inflexible power plants like PSNH’s less competitive, not more.

Propping up outdated physical assets – with high fixed maintenance costs – in the hopes that they will someday become competitive again is not “insurance.” It’s the kind of backward thinking that no competent manager or economist would endorse.

As a matter of policy, PSNH’s strategy enacts the classic economic mistake of “throwing good money after bad” by placing too much emphasis on “sunk costs,” an unfortunately common problem that James Surowiecki recently discussed in The New Yorker in describing the irrationality of sports teams’ commitments to ineffective players, like the Jets’ Mark Sanchez, after years of poor performance and bloated salaries.

At least sports teams suffer the consequences of their choices – they lose. With guaranteed profit and regulator-approved rates to recover its costs, PSNH and its parent Northeast Utilities have continued to win, even after a decade or more of terrible investment decisions. Unless of course PSNH can be made to pay for the mess it has created.

The key paragraph of the Concord Monitor’s editorial argues precisely this same point:

[L]awmakers must ensure that the lion’s share of the loss is incurred by investors in PSNH’s parent company, Northeast Utilities, not by New Hampshire ratepayers. That includes the huge cost of the mercury scrubber. It was investors, after all, who gambled that it made sense to spend hundreds of millions of dollars to keep an old coal plant running. They could have said no. So it’s investors who should lose if that gamble doesn’t pay off.

As PSNH looks for opportunities to spread its costs to the New Hampshire businesses and households that have escaped PSNH’s high rates, this is timely advice for New Hampshire policymakers. They should heed it.