Patricia Aho, commissioner of the Maine Department of Environmental Protection, is the target of renewed criticism over regulatory action that benefited clients of her previous employer, the Pierce Atwood law firm, where she was a longtime industrial lobbyist.
This time the incoming fire is from a state judge.
In a ruling issued Monday, Kennebec County Superior Court justice Michaela Murphy overturned a controversial regulatory decision Aho made in June 2011 involving noise violations at a Vinalhaven wind farm, saying there was “no rational basis or relevant evidence” to support it.
Aho’s decision, which reversed the recommendations of DEP staff and the Attorney General’s Office, was the exact outcome sought by Vinalhaven’s Fox Island Wind, which was represented by Pierce Atwood, the state’s largest law firm, where Aho had worked until earlier that year.
Instead of requiring disclosure of detailed monitoring information to allow staff to develop appropriate protocols, Aho announced that the company would only have to address the exact conditions that existed on the night of July 17-18, 2011, when a documented noise violation had occurred. The DEP did not explain its decision, either publicly or in the agency records the court reviewed.
Murphy wrote that Aho’s actions did not violate the narrow definition of bias under Maine law, but the judge blasted the commissioner for her involvement in the case, saying it “directly benefited a client of her former employer.”
“While this case might not present the ‘extraordinary circumstances’ which must exist for a Court to find ‘bias’ as that term has been defined by the Law Court,” Murphy wrote, “Commissioner Aho’s continuing participation in deciding upon operational and complaint protocols could be viewed as antithetical to the common notions of impartiality which Maine citiziens understandably expect from decision makers in Maine agencies.”
The judge also urged the DEP to “consider the wisdom of [Aho’s] continued participation in this process” as they drew up a new and acceptable response to Fox Island Wind’s noise violations.
In a written statement, DEP spokeswoman Jessamine Logan said the department was “disappointed with the decision” and was reviewing it with the Attorney General’s Office to determine “next steps.”
“In the decision the judge clearly stated that there was no basis for a finding of bias,” Logan added, saying Aho had “not only…complied with the laws and rules for state employees” but also with “the professional and ethical rules for attorneys, which set forth a higher standard than the rules that govern appointed positions.”
Logan noted that Aho had to make “hundreds of decisions based on staff recommendations” and that some would inevitably favor clients of Pierce Atwood. Others “will aggrieve those parties as well,” she added. “When that happens it does not generate news.”
The DEP did not respond to requests to speak with Aho directly.
MORE THAN 20 NOISE COMPLAINTS FILED
Rufus Brown, attorney for the Vinalhaven homeowners who brought the action to court, said the judge’s rebuke was “extraordinary” and something he’d never before seen.
“We feel strongly that Aho’s action was a combination of her willingness to be kind to her former firm’s clients, and also politics,” Brown said, noting that Aho came to the decision when she was still acting commissioner. “Her willingness to do what the governor’s office wanted her to do was probably in the back of her mind.”
In a series published last June, the Portland Press Herald/Maine Sunday Telegram revealed how Aho had stifled many of the very laws and programs she had been paid to defeat as a lobbyist for the oil, chemical, waste management, drug and real estate development industries. It also examined how the department missed a key deadline in the relicensing of the Flagstaff Dam in Eustis, to the benefit of the dam’s owner, which was also represented by Pierce Atwood.
The Vinalhaven case stems from noise problems at Fox Island Wind’s $15 million wind farm, which started operating in 2009. The farm, consisting of three 1.5-megawatt turbines, is popular with many on Vinalhaven, as it has reduced electricity costs for the island by more than 10 percent.
But two dozen people living within a mile or so of the turbines were dismayed by the noise and air vibrations emitting from their 123-foot blades, which tormented some and reduced property values for others. In the spring of 2010, they collectively filed more than 20 noise complaints with the DEP, which in turn asked Fox Island Wind for sound and operational data for the dates in question. The company refused.
The petitioners, who today act as the Fox Island Wind Neighbors, hired professional acoustics experts who collected data documenting that the turbines exceeded the state’s 45-decibel noise standard on the night of July 17-18, 2010, and forwarded it to the DEP.
When DEP issued a formal notice of violation in November 2010, the wind company responded with a plan that would reduce noise levels at the turbines only when meteorological conditions were identical to those observed on that particular night.
At the time, the DEP found this solution inadequate, as technical staff had determined that the noise problems were a product of wind shear which could occur in a much wider range of wind directions and conditions than those experienced on July 17-18, 2010. They drafted a counterproposal in consolation with Assistant Attorney General Amy Mills that required the company to disclose wind and noise data and respond to noise complaints. The company opposed this proposal.
COURT: AHO’S DECISION NO SOLUTION
On June 30, 10 days after becoming acting commissioner, Aho issued the compliance order the company wanted, one limited to the wind direction recorded on the night of July 17, 2010, and without the counterproposal developed by her staff, the court record shows.
In throwing out this order, the court found “there is clear and un-rebutted evidence in the record that wind direction is not the main causative factor” in the noise problems and that they would likely recur whenever “there was significant vertical and directional wind sheet.”
In short, the judge found Aho’s order did not address the problem.
“Commissioner Aho could not have rationally adopted [an order] that addresses only the speculative factor of wind direction to the exclusion of the one clear, relevant, and uncontested causative factor: wind shear of a certain coefficient,” the court decision reads.
“We’re very pleased that we’re finally going to have a chance for some justice,” says Alan Farago, one of the Fox Island Wind Neighbors, who he says have collectively spent about $150,000 on the proceedings. “It’s regrettable that it’s taken so long and that there have been so many obstacles put in the way of citizens just trying to get government to do the job it is supposed to do.”
Before the 2014 legislative session, Democratic leaders said they would not proceed with a planned probe of Aho and the DEP, but they were proposing two measures to increase oversight. One would require close reporting of upcoming dam deadlines, and the other would re-establish the independent Board of Environmental Protection’s oversight of routine rules changes – not just “major substantive” rules changes – by the DEP.
Both measures were in L.D. 1744, which was endorsed last week by the Legislature’s Environment and Natural Resources Committee. The bill’s sponsor, Rep. Jeff McCabe, D-Skowhegan, said one or both of the measures may have been removed from the text of the final bill, which has yet to post on the Legislature’s website.
Sen. Chris Johnson, D-Somerville, who originally sought an investigation of the commissioner, said he is frustrated by the lack of action.
“Unfortunately, without clear evidence of a violation of a law or rule, it becomes a matter of policy decisions and whether you agree with them or not,” Johnson said.