I know I'm a wonk. That's the only way to explain why I find these things so intriguing and downright exciting.
But there are some interesting legal issues to explore on the Broadwater front. (See the article we've published today about FERC's denial of the rehearing requests filed by the NY, Conn., Suffolk County, and four towns, reprinted below.)
The jurisdictional issue is key. Administrative agencies, like FERC, cannot promulgate regulations or policies inconsistent with the enabling legislation that confers regulatory jurisdiction upon the agencies. That's a basic principle of administrative law.
But is that, in fact, what FERC is doing by issuing "conditional" licenses prior to the states' coastal consistence certifications, as the attorney for Riverhead and Southold argues? (The states of Washington and Delaware make this claim, too, in their lawsuits against FERC pending in the DC Circuit Court of Appeals.)
Here's what the statute, Section 307 of the Coastal Zone Management Act [15 USC 1456(c)(3)(A)], says:
No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.
So, does this prohibition "No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's [consistency] certification..." mean FERC cannot legally issue licenses conditioned on the state's concurrence with the applicant's consistency certification?
That's the question in a nutshell.
There's a similar "condition precedent" in the Clean Water Act (Section 401).
By issuing the conditional licenses in advance of the coastal consistency and clean water act certifications by states, is FERC running amok?
These are interesting legal questions with far-reaching implications. Do you think New York and Connecticut will bring their own federal suits on the same grounds? I bet they will.
From The Suffolk TImes, Sept. 11, 2008:
FERC refuses to reconsider Broadwater permit
Towns will challenge FERC in federal court
By Denise Civiletti
Federal regulators last Thursday refused multiple requests by state, county and town officials to reconsider their March 20 approvals of Broadwater Energy’s floating liquefied natural gas terminal and subsea pipeline in Long Island Sound.
Following New York state’s April 10 coastal consistency ruling, New York and Connecticut, Suffolk County and the towns of Riverhead, Southold, Brookhaven, East Hampton and Huntington asked the Federal Energy Regulatory Commission to conduct a new hearing on Broadwater’s applications for permits to construct and operate an LNG storage and regasification terminal in the middle of the Sound and the 22-mile subsea pipeline it would use to supply an existing natural gas transmission network with 1 billion cubic feet of natural gas daily.
But in a 97-page decision defending the findings of its environmental impact study and its original permit approvals, FERC unequivocally rejected the rehearing requests, setting the stage for a federal court battle between local and state governments on one hand and federal energy regulators on the other. At issue will be FERC’s authority to issue permits prior to coastal consistency certification by the host state as required by federal law, according to the attorney representing Riverhead and Southold.
“It’s a violation of the [federal] Clean Water Act and Coastal Zone Management Act for FERC to license the project prior to hearing from the state regarding CZMA and the Clean Water Act. Those must be decided by the state first,” said Peter Bergen, the attorney representing the towns of Riverhead and Southold.
FERC issued Broadwater’s permits in advance of New York’s issuing its coastal zone consistency certification, and that’s illegal, Mr. Bergen maintains. “It violates the plain language of the statutes,” he said. Mr. Bergen said section 307 of the Coastal Zone Management Act and section 401 of the Clean Water Act, both federal statutes, plainly require the host state to approve the Broadwater plan before FERC may issue its permits.
Instead, FERC has been issuing permits ahead of state coastal consistency and Clean Water Act certifications, according to Mr. Bergen and attorneys for New York and other states involved in litigation with FERC.
“We raised that issue in our rehearing request and FERC just blew us off,” Mr. Bergen said. “That’s one of the issues we’re going to take to court.”
At least two other states, Washington and Delaware, are already challenging FERC’s practice of issuing conditional permits prior to state coastal consistency and Clean Water Act certifications. Their actions are now pending before the U.S. Court of Appeals in Washington, D.C.
The issue, according to a brief filed by Washington state in its lawsuit against FERC, is “whether the Federal Energy Regulatory Commission can, through policy and practice, rewrite the terms of federal statutes...” Washington state says the answer is clearly no.
The federal law was specifically crafted to allow states that are hosts to these projects and must live with their impacts a “protected” period of time to evaluate them, said Joan Marchioro, an attorney in Washington state’s attorney general’s office. FERC’s policy of issuing “conditional” licenses turns the statute on its head, she said, and “once FERC says to an applicant ‘you’re good to go,’ it puts all the pressure on the state.”
The New York Department of State would only say it is reviewing its options at this time, and the attorney representing Suffolk County did not return a phone call seeking comment. But Mr. Bergen said he recommended to Riverhead and Southold that the towns take this challenge to the federal court and he believes the other parties would follow suit.
Broadwater senior vice president John Hritcko said he is pleased with FERC’s decision denying a rehearing.
“The commission went through it issue by issue and they did a good job reviewing each one of the points made in the rehearing requests,” Mr. Hritcko said in a telephone interview from his office in Houston, Tex., headquarters of Shell Oil, joint venture partner in Broadwater Energy with TransCanada Pipelines.
Broadwater, meanwhile, has appealed the N.Y. coastal consistency ruling to the U.S. secretary of commerce, who has the authority to override the state’s consistency ruling. That appeal is pending, with a ruling by the commerce secretary expected in early 2009, according to Ted Beuttler, a staff attorney in the commerce department’s office of general counsel for ocean services.
Copyright 2008 Times/Review Newspapers Corp.
Showing posts with label DEC. Show all posts
Showing posts with label DEC. Show all posts
Thursday, September 11, 2008
Thursday, February 07, 2008
Is the Sound up for sale?
Valentine’s Day is coming and Broadwater Energy wants to win your heart. And it’s come calling with more than a box of chocolates and a dozen roses. The would-be natural gas provider has an open checkbook and the deep pockets of its owners, Shell Oil Company and TransCanada Corp., to tap for cash to influence public opinion.
Broadwater has initiated a media blitz in what might be — should be — the last days of opportunity to gain New York’s approval for its plan to moor a huge floating LNG terminal in the waters off the coast of Wading River. In TV, radio and print ads throughout the metropolitan region, Broadwater is crowing about its purported benefits to the Long Island economy and local residents, including a $300 “median household annual savings” on energy costs for Long Island residents.
Why now?
According to John Hritcko, Broadwater’s senior vice president, Broadwater is in the public eye right now, with the Feb. 12 deadline for a decision by the state department coming up and the possibility that the company’s permit application might be on the Federal Energy Regulatory Commission’s agenda for approval at its Feb. 21 meeting. Time for some good PR. And Broadwater is willing to spend a pretty penny to get it, though Mr. Hritcko won’t divulge the amount.
The PR campaign includes well-timed check-passing events like the one staged in the Deer Park headquarters of United Way of Long Island Tuesday morning, where Shell Oil CEO John Hofmeister joined Mr. Hritcko and United Way board members to announce a gift of $150,000 to the organization’s Project Warmth, which provides emergency assistance to residents who need help meeting their heating bills.
United Way of Long Island board members gushed with love and appreciation for Shell, TransCanada and Broadwater, declaring the energy behemoths “good corporate citizens,” and “friends and neighbors.” Bill Savino, chairman of the board, vigorously pumped Mr. Hofmeister’s hand as he proclaimed, “Welcome to Long Island.”
Yep, money talks.
Money wins friends and influences people in high places. Money no doubt explains why Mr. Hofmeister and TransCanada CEO Hal Kvisle got some private face time with Governor Eliot Spitzer a few weeks ago. Mr. Hofmeister told me they wanted to make sure Mr. Spitzer understood their proposal and their commitment to protecting the Long Island Sound. Mr. Hofmeister said the governor was “very clear about his neutrality” on Broadwater in his meeting with the chiefs of the two multi-billion-dollar multi-national corporations.
Another thing that’s very clear about Mr. Spitzer is his reluctance to accord the same opportunity for an audience to anti-Broadwater citizen activists. He delegated the task of meeting with “the little people” on this issue to his staff. When the feisty executive director of Citizen’s Campaign for the Environment, Adrienne Esposito, heard last week about Mr. Spitzer’s confab with Shell’s CEO, she blasted him on it publicly. Her complaint was picked up by Channel 12 News last Tuesday and the very next day, the governor’s deputy energy secretary called Ms. Esposito to say the governor would, in fact, meet with her. She’s still waiting for his appointments secretary to call to set it up, as promised.
Mr. Spitzer is in a bind. Both of the state agencies charged with reviewing the Broadwater plan hate it, but he’s under pressure from people like NYC Mayor Michael Bloomberg to clear the path for its approval, according to sources inside the Spitzer administration. Word is the energy execs sat down with the governor to propose another extension of the state’s consistency review decision deadline. Broadwater will use the time to win the hearts and minds of the public with a slick ad campaign and the spreading of its partner’s corporate largesse. If Broadwater can sway public opinion and the governor can avoid another public relations debacle — he’s already had his share — he’ll go along with it. Shell and TransCanada also reportedly offered to “sweeten the deal” for the Empire State.
Following Tuesday’s PR ceremony, I asked Shell CEO Hofmeister and Broadwater vice president Hritcko if a deadline extension is being sought and if the company had upped the ante for the supposedly still-undecided Gov. Spitzer. Denials all around. No comment from the governor’s spokesperson or his counterpart at the department of state. By this time next week, we’ll know.
Yet even as the state considers giving a pass to a project that will destroy more than 200 million fish eggs, larvae and small fish in L.I. Sound each year, with the unavoidable impacts that will have on the commercial and recreational fishing industries — not to mention the fish — the DEC on Tuesday issued stricter catch limits for tautog, or blackfish, citing the fishery’s depletion in state waters, including the Sound. Knowing the current condition of local fisheries like this, how can the state even consider approving Broadwater?
If reliance on foreign fossil fuel products like LNG is unavoidable, and some number of the 42 planned new LNG facilities is needed to meet America’s energy demands, surely there’s got to be a better place to build one than the fragile, already-stressed estuary of Long Island Sound.
Broadwater has initiated a media blitz in what might be — should be — the last days of opportunity to gain New York’s approval for its plan to moor a huge floating LNG terminal in the waters off the coast of Wading River. In TV, radio and print ads throughout the metropolitan region, Broadwater is crowing about its purported benefits to the Long Island economy and local residents, including a $300 “median household annual savings” on energy costs for Long Island residents.
Why now?
According to John Hritcko, Broadwater’s senior vice president, Broadwater is in the public eye right now, with the Feb. 12 deadline for a decision by the state department coming up and the possibility that the company’s permit application might be on the Federal Energy Regulatory Commission’s agenda for approval at its Feb. 21 meeting. Time for some good PR. And Broadwater is willing to spend a pretty penny to get it, though Mr. Hritcko won’t divulge the amount.
The PR campaign includes well-timed check-passing events like the one staged in the Deer Park headquarters of United Way of Long Island Tuesday morning, where Shell Oil CEO John Hofmeister joined Mr. Hritcko and United Way board members to announce a gift of $150,000 to the organization’s Project Warmth, which provides emergency assistance to residents who need help meeting their heating bills.
United Way of Long Island board members gushed with love and appreciation for Shell, TransCanada and Broadwater, declaring the energy behemoths “good corporate citizens,” and “friends and neighbors.” Bill Savino, chairman of the board, vigorously pumped Mr. Hofmeister’s hand as he proclaimed, “Welcome to Long Island.”
Yep, money talks.
Money wins friends and influences people in high places. Money no doubt explains why Mr. Hofmeister and TransCanada CEO Hal Kvisle got some private face time with Governor Eliot Spitzer a few weeks ago. Mr. Hofmeister told me they wanted to make sure Mr. Spitzer understood their proposal and their commitment to protecting the Long Island Sound. Mr. Hofmeister said the governor was “very clear about his neutrality” on Broadwater in his meeting with the chiefs of the two multi-billion-dollar multi-national corporations.
Another thing that’s very clear about Mr. Spitzer is his reluctance to accord the same opportunity for an audience to anti-Broadwater citizen activists. He delegated the task of meeting with “the little people” on this issue to his staff. When the feisty executive director of Citizen’s Campaign for the Environment, Adrienne Esposito, heard last week about Mr. Spitzer’s confab with Shell’s CEO, she blasted him on it publicly. Her complaint was picked up by Channel 12 News last Tuesday and the very next day, the governor’s deputy energy secretary called Ms. Esposito to say the governor would, in fact, meet with her. She’s still waiting for his appointments secretary to call to set it up, as promised.
Mr. Spitzer is in a bind. Both of the state agencies charged with reviewing the Broadwater plan hate it, but he’s under pressure from people like NYC Mayor Michael Bloomberg to clear the path for its approval, according to sources inside the Spitzer administration. Word is the energy execs sat down with the governor to propose another extension of the state’s consistency review decision deadline. Broadwater will use the time to win the hearts and minds of the public with a slick ad campaign and the spreading of its partner’s corporate largesse. If Broadwater can sway public opinion and the governor can avoid another public relations debacle — he’s already had his share — he’ll go along with it. Shell and TransCanada also reportedly offered to “sweeten the deal” for the Empire State.
Following Tuesday’s PR ceremony, I asked Shell CEO Hofmeister and Broadwater vice president Hritcko if a deadline extension is being sought and if the company had upped the ante for the supposedly still-undecided Gov. Spitzer. Denials all around. No comment from the governor’s spokesperson or his counterpart at the department of state. By this time next week, we’ll know.
Yet even as the state considers giving a pass to a project that will destroy more than 200 million fish eggs, larvae and small fish in L.I. Sound each year, with the unavoidable impacts that will have on the commercial and recreational fishing industries — not to mention the fish — the DEC on Tuesday issued stricter catch limits for tautog, or blackfish, citing the fishery’s depletion in state waters, including the Sound. Knowing the current condition of local fisheries like this, how can the state even consider approving Broadwater?
If reliance on foreign fossil fuel products like LNG is unavoidable, and some number of the 42 planned new LNG facilities is needed to meet America’s energy demands, surely there’s got to be a better place to build one than the fragile, already-stressed estuary of Long Island Sound.
Sunday, December 17, 2006
My interview wtih Mike Cholowsky
In reporting the story ("Who's minding the mine?") for last week's News-Review, I called Mike Cholowsky for comment. He called me back late Wednesday, past deadline, and I plan to report on that in the upcoming edition.
He didn't appreciate my questions, to say the least. He accused me of attacking him. Referring to his Brentwood facility, which uses rail to ship garbage (something the DEC really likes because it keeps trucks off the roads, helping to limit air pollution — now that they're forcing LI towns to long-haul thousands of tons of trash off-island!).
"I'm just trying to do a good thing," Cholowsky told me. "Why do you have to put a negative spin on this? Why do you want to attack me?"
He said his mining permit condition (prohibiting involvement in the solid waste industry, as per his affidavit) was intended to apply to the operation of East End Recycling only; it wasn't a general prohibition. I pointed out that the language of his affidavit and the special condition of the permit were both very general and made no mention of East End Recycling.
He said:
"The documents I signed with DEC regarding solid waste pertained to the overlap in East End Recycling's permit at the time. That was going to be a waste facility on Calverton Industries site. As it pertained to that and that site. It was not a general prohibition."
So why was it worded to read like a general prohibition?
"That was, those permits and requirements were, uh, you know, through the DEC. We walked through both applications, both permits."
Cholowsky explained his apparently false answers to DEC application questions this way:
"I just answered the way my lawyer told me to."
I have a copy of the criminal court docket from the U.S. District Court for the Eastern District of New York indicating that Michael Cholowsky III pled guilty to one count of "conspiracy to defraud the United States" in 2000.
Why, I asked Cholowsky, did he answer "no" to the question on the DEC application asking if he'd ever been convicted of a crime involving fraud? (The actual language of the application states "crime involving fraud, bribery, perjury, theft or an offense against public administration."
His answer:
"I pled guilty to conspiracy to make extortion payments. That application was reviewed by my attorney, by DEC attorneys, by everybody involved. I answered them as directed."
What he says he pled guilty to doesn't match the criminal court docket. But even so, how could "conspiracy to make extortion payments" not come within the language on the application?
No answer.
Of course, I also asked him how he knew Barbara Blass had been at the DEC reviewing the Calverton Industries file on the morning of Oct. 2? (As I reported in the News-Review this week, the councilwoman FOILed the CI file, spent the morning of Oct. 2 reviewing it, and got a call from Cholowsky within an hour of her return to Riverhead Town Hall that day, in which he told her she needn't FOIL his DEC records if she wanted to know anything about his business. All she had to do was ask him." Ms. Blass told me she felt the purpose of his call was to intimidate her.
When I asked him this question ("How did you know BB had been at DEC looking at his records...") he laughed for quite a while — too long, it seemed. Then he asked me, "How do you know that I knew?" And then he laughed some more. Then he told me that he really didn't know. I asked, "So what are you, psychic?" More laughter. "No, I wouldn't say I'm psychic." Then the laughter stopped and his voice just got sort of cold, and he said: "But I'm not stupid, either."
OK, then.
He called me back again within 10 minutes to make the following comments (this is how I typed what he said as he spoke, cut and pasted from my notes):
"im a little upset
my emjay project is something that im really proud of
a good concept
i got shot down in calverton
found another location
i really went out on a limb
spent a lot of money
it's unchartered territory
the trouble that i got into in 99
that was the most difficult time of my life
the worst 2 yrs of my life
im not trying to do anything wrong
im trying to do good things
i feel like anything i try to do i get attacked
i think i did a good thing
a good service
if we're going to move a million yards of waste off LI
it should be by rail
i think im doing a good thing
im not trying to hurt anybody
i don't see why i have to be dragged thru the mud & beat up
i made a mistake
i paid dearly for it
i feel like i should have a right to move on"
He didn't appreciate my questions, to say the least. He accused me of attacking him. Referring to his Brentwood facility, which uses rail to ship garbage (something the DEC really likes because it keeps trucks off the roads, helping to limit air pollution — now that they're forcing LI towns to long-haul thousands of tons of trash off-island!).
"I'm just trying to do a good thing," Cholowsky told me. "Why do you have to put a negative spin on this? Why do you want to attack me?"
He said his mining permit condition (prohibiting involvement in the solid waste industry, as per his affidavit) was intended to apply to the operation of East End Recycling only; it wasn't a general prohibition. I pointed out that the language of his affidavit and the special condition of the permit were both very general and made no mention of East End Recycling.
He said:
"The documents I signed with DEC regarding solid waste pertained to the overlap in East End Recycling's permit at the time. That was going to be a waste facility on Calverton Industries site. As it pertained to that and that site. It was not a general prohibition."
So why was it worded to read like a general prohibition?
"That was, those permits and requirements were, uh, you know, through the DEC. We walked through both applications, both permits."
Cholowsky explained his apparently false answers to DEC application questions this way:
"I just answered the way my lawyer told me to."
I have a copy of the criminal court docket from the U.S. District Court for the Eastern District of New York indicating that Michael Cholowsky III pled guilty to one count of "conspiracy to defraud the United States" in 2000.
Why, I asked Cholowsky, did he answer "no" to the question on the DEC application asking if he'd ever been convicted of a crime involving fraud? (The actual language of the application states "crime involving fraud, bribery, perjury, theft or an offense against public administration."
His answer:
"I pled guilty to conspiracy to make extortion payments. That application was reviewed by my attorney, by DEC attorneys, by everybody involved. I answered them as directed."
What he says he pled guilty to doesn't match the criminal court docket. But even so, how could "conspiracy to make extortion payments" not come within the language on the application?
No answer.
Of course, I also asked him how he knew Barbara Blass had been at the DEC reviewing the Calverton Industries file on the morning of Oct. 2? (As I reported in the News-Review this week, the councilwoman FOILed the CI file, spent the morning of Oct. 2 reviewing it, and got a call from Cholowsky within an hour of her return to Riverhead Town Hall that day, in which he told her she needn't FOIL his DEC records if she wanted to know anything about his business. All she had to do was ask him." Ms. Blass told me she felt the purpose of his call was to intimidate her.
When I asked him this question ("How did you know BB had been at DEC looking at his records...") he laughed for quite a while — too long, it seemed. Then he asked me, "How do you know that I knew?" And then he laughed some more. Then he told me that he really didn't know. I asked, "So what are you, psychic?" More laughter. "No, I wouldn't say I'm psychic." Then the laughter stopped and his voice just got sort of cold, and he said: "But I'm not stupid, either."
OK, then.
He called me back again within 10 minutes to make the following comments (this is how I typed what he said as he spoke, cut and pasted from my notes):
"im a little upset
my emjay project is something that im really proud of
a good concept
i got shot down in calverton
found another location
i really went out on a limb
spent a lot of money
it's unchartered territory
the trouble that i got into in 99
that was the most difficult time of my life
the worst 2 yrs of my life
im not trying to do anything wrong
im trying to do good things
i feel like anything i try to do i get attacked
i think i did a good thing
a good service
if we're going to move a million yards of waste off LI
it should be by rail
i think im doing a good thing
im not trying to hurt anybody
i don't see why i have to be dragged thru the mud & beat up
i made a mistake
i paid dearly for it
i feel like i should have a right to move on"
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