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    Source:  Helen Parker

    Next steps on the Massachusetts Wind Energy Siting Reform Act  

    An action alert came through from statewide and regional groups this morning. This relates to “public process” and takes us right back to August of ’09 when Vineyard elected officials unanimously expressed their opposition to the Oceans Management Act, which was, nevertheless and despite numerous citizen and federal governmental agency substantive criticisms, passed in December ’09.

    Background: The Oceans Act of 2008, followed by the 2009 Ocean Management Act, brought us to the Wind Energy Siting Reform Act [S.2260], currently before the House Ways & Means Committee [chaired by Charlie Murphy]. Each of these 3 Acts are presumptuous violations of the Public Trust Doctrine, one of the oldest statutes in the country, with roots deeper yet. Passed in 1642 to regulate rights in the Massachusetts Colony’s waters, the Public Trust Doctrine was honored and enforced throughout its first 366 years.

    “As ancient as western civilization itself, the Public Trust Doctrine is thought to originate in the second century writings of a Roman jurist who codified the pronouncements of Greek philosophers, much of which in turn was codified into Roman civil law … circa 530 AD. [Honest-to-Gaia!] … The central tenet of the Public Trust Doctrine was that the so-called ‘tidelands,’ were to be held in trust for the common benefit of the public, for commerce, fishing, and other activities in which all citizens were free to engage. This same doctrine was brought to the American colonies, passed on to the thirteen original states after the Revolution, and ultimately inherited by every coastal state as it came into the Union (subject to the powers delegated to the federal government by the US Constitution).”

    The more widely-known and understood 1978 Oceans Sanctuary Act takes its authority from the venerable Public Trust Doctrine and specifically, “prohibits activities that may significantly alter or endanger the ecology or appearance of… the Ocean Sanctuaries or the Cape Cod National Seashore (which include most state waters with the major exception of an area east of Boston Harbor …). To accomplish this goal, the Act specifically prohibits (1) building structures on or under the seabed.” See mass.gov/czm.

    By passing the “game-changing” 2008 Oceans Act, the state legislature simply and radically eliminated the protections and prohibitions which had been in force since 1642, and – one might say – since the beginnings of civilization. Poof! Next step: the Wind Energy Siting Reform Act, now before the House Ways and Means Committee, which would begin with fast-and-free permitting and extend to removing local jurisdiction of siting decisions on land and sea throughout the Commonwealth.

    As described on the Green Berkshires website, the Wind Energy Siting Reform Act “aims to achieve the governor’s goal of 2,000 megawatts of wind development by 2020 through an unprecedented set of special benefits for a single industry that includes overriding Home Rule, replacing environmental laws with ‘standards,’ and eliminating traditional rights of participation and appeal by the public.

    “The Act shifts ultimate decision-making power over the siting of industrial wind turbines from municipalities to a … state board appointed by the governor. The Energy Facilities Siting Board has never rejected an energy project application . The Act supplants zoning and environmental laws … with ‘standards’ created and applied or waived at the discretion of the EFSB. The Act also systematically eviscerates adjudicatory and judicial rights of appeal for municipalities, citizen groups, and, in some cases, even neighbors. If the Act is adopted, Massachusetts will be the only state to eliminate adjudicatory procedure from review of wind projects.”

    If you don’t like the way this sounds, speak up. Green Berkshires has made it easy for you to make a difference. Go to their website, sign their petition. They make it easy to send an email to Charlie Murphy, to Speaker DeLeo, to Madden and O’Leary.

    Helen Parker, April 15, 2010

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