Patrick McGowan, commissioner of the Maine Department of Conservation, said Tuesday he should not have called a Land Use Regulation Commission member to talk about a controversial wind farm proposal the day after the panel’s preliminary vote against it.
“I made a mistake,” McGowan said, stressing that was not trying to influence the outcome.
The call ultimately led to questions about the commission’s internal conversations and to accusations of improper behind-the-scenes efforts to revive the doomed wind farm plan. Those accusations will be the first order of business this morning when the commission opens a multi-day public hearing on what is now called the Black Nubble Wind Farm.
The scrutiny is another test for the land use commission as it wades through a series of massive projects, including two more proposed wind farms and Plum Creek Timber Co.’s historic subdivision plans around Moosehead Lake.
“I hope whatever they do (today), the public thinks this is an agency that will do business out in the open. They’ve got a lot of important things coming up,” said William Plouffe, a Portland-based attorney who has called on one commission member and the commission’s staff to take themselves out of the review process.
Black Nubble is the scaled-down version of the Redington Wind Farm plan that appeared doomed after a surprise 6-1 preliminary vote by the land use commission last January. Rather than face a final vote against the 30-turbines on Redington and Black Nubble mountains, the developers scaled down the plan to 18 turbines on Black Nubble and asked for another chance.
Today’s hearing on the new plan starts at 8:30 a.m. at Sugarloaf/USA ski resort and is expected to last three days.
State law and the land commission’s own rules ban private talks between commission members and anyone advocating a position on a pending matter, even if the person is another board member or a state official. So, while the Land Use Regulation Commission is part of the Department of Conservation, its seven members are appointed by the governor and are supposed to remain independent as they oversee land use in Maine’s unorganized territories.
The complaints of bias and influence can be traced back to Jan. 25, when McGowan called Ed Laverty, a commission member.
Laverty later said McGowan asked him to call the other members of the commission and ask where they stand in the wake of the decision the day before. Commission members had not yet made a final decision to kill or approve the project, and Laverty told McGowan he felt it would not be right for him to call other members. Laverty, who could not be reached this week, disclosed the conversation during a commission meeting months later, on Aug. 1.
McGowan said Tuesday he wasn’t trying to change any votes when he called.
“Ed Laverty and I disagree on that conversation. My conversation with him was about the process,” McGowan said. “I don’t have a stake in this wind farm. We just have to run a process that’s fair … We should be able to advise an applicant whether or not the application process is going well or if there’s any more information that’s needed.”
While McGowan said he knows now the call was inappropriate, he maintains it did not violate any laws because the issue had been decided. “If I had been actively lobbying a project, I would have called those members before the vote,” he said.
Plouffe, the lawyer representing opponents, said the record indicates that McGowan and others were trying to salvage the plan in the days after the preliminary vote. “(The Jan. 24 vote) was not final agency action. We were still in the process of a judicatory proceeding,” Plouffe said.
Plouffe represents Maine Audubon, the Appalachian Mountain Club, the Maine Appalachian Trail Club and the Appalachian Trail Conservancy, the leading opponents of the Black Nubble project.
The disclosure of McGowan’s call last month led Plouffe to ask for records of conversations involving all commission members and staff. The Attorney General’s Office has been reviewing Plouffe’s complaints about bias and improper conversations, as well as his request for one commission member and the commission staff to stay out of the review and decision process. Assistant Attorney General Jerry Reid declined to discuss a response before the hearing.
Black Nubble’s developer, meanwhile, is concerned the accusations about bias could distract and influence the board. The lawyer for Maine Mountain Power, Jeff Thaler, wrote to the commission last week that he hopes the focus of the hearing will be the wind farm.
Gov. John Baldacci, meanwhile, is reminding members of his Cabinet to stay clear of decisions by regulatory boards such as the land commission.
“Unless it’s absolutely necessary, there should be as little communication about pending matters as possible between commissioners and regulatory bodies,” said Mike Mahoney, Baldacci’s chief legal counsel. “These independent boards really need to be doing their work as independently as possible.”
Mahoney agreed that McGowan made the telephone call before, not after, a final decision had been made on the wind farm. “It was still a pending process,” he said.
At Baldacci’s request, Mahoney is scheduled to brief the cabinet officials this morning on the rules against improper contacts with regulatory bodies.
By John Richardson
Blethen Maine Newspapers
19 September 2007
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