Op-Ed : The draft Oceans Plan is critical to the Vineyard
By Ron Rappaport and Eric Wodlinger
Published: September 24, 2009
The writers are attorneys. Mr. Rappaport, whose office is in Edgartown, serves as counsel to five of the seven Dukes County towns and has, from time to time, advised the Martha's Vineyard Commission. Mr. Wodlinger, whose office is in Boston, represents the Martha's Vineyard Commission and the Cape Cod Commission. A copy of Robert Keough's commentary appears here.
We are responding to the commentary by Robert Keough, Assistant Secretary at the Massachusetts Executive Office of Energy and Environmental Affairs, published in the Vineyard Gazette on September 18. One of us is town counsel to five of the Vineyard towns and the other serves as counsel to the Martha's Vineyard Commission and the Cape Cod Commission. Perhaps because of our experience, our perspective differs from Mr. Keough's on the Oceans Act, the Oceans Plan, and the Energy Facilities Siting Board.
Without addressing the merits of any offshore proposal, we wish to respond to Mr. Keough's commentary on the following points:
1) The Oceans Act of 2008 changed the law governing energy projects in state waters in two ways. Firstly, prior to August 26, 2008, "... the building of any structure on the seabed...; the construction or operation of offshore ... electric generating stations..." were prohibited within ocean sanctuaries. The Oceans Act created an exception to this blanket prohibition. It allows the construction or operation of offshore electric generating stations, "... for appropriate-scale renewable energy facilities, as defined by an ocean management plan...."
Secondly, it further provided that, "... in regions where regional planning agencies have regulatory authority,...the applicant may seek review pursuant to the authority of the Energy Facilities Siting Board...." G.L. Chapter 132A, § 15(2).
Thus, the statutory prohibition on any structures in ocean sanctuaries was repealed and the Energy Facilities Siting Board ("EFSB") was expressly given authority to override the decisions of the Martha's Vineyard Commission ("MVC") and the Cape Cod Commission ("CCC").
In the current statutory framework, the Oceans Plan will determine where utility-scale offshore electric generating plants may be located. The powers of towns and counties, whose boundaries by statute extend to the marine boundary of the Commonwealth, can now be overridden by the EFSB regarding whatever the Oceans Plan decides are "appropriately" scaled offshore renewable energy facilities.
2) The extensive consultation process which the state has undertaken for the Oceans Plan is helpful, but the statutes give the EFSB the power to override local and regional decisions at the behest of a complaining developer. That is the legal process that has been established, and we should anticipate that it will be used.
3) The EFSB is a political, not a judicial, body. Every member of the EFSB is directly or indirectly appointed by the governor and serves at the governor's pleasure or for a term co-terminus with that of the governor. (G..L. Chapter 164, § 69H.) Not surprisingly, the EFSB board members seem to be responsive to the governor's wishes. Moreover, with one recent and minor exception, since its formation in 1973, the EFSB has reportedly granted a license for every electric generating station which has applied for one. For a utility or an electric power developer, this is the permitting body of your dreams.
4) We take no position on the merits of any particular wind energy proposal or of the draft Oceans Plan. Our point is simply this: The effect of the Oceans Act is twofold (a) it removes the absolute protection formerly given to Massachusetts Ocean Sanctuaries; and (b) it gives an offshore wind energy developer unhappy with regional or local permit denials a political tool to override those denials, instead of an appeal to an impartial court.
Speaking for ourselves, we believe that decisions which will affect the way people live on Martha's Vineyard should be made on Martha's Vineyard; they should not be subject to a political override on Beacon Hill. Whether any particular offshore wind energy proposal is good or bad is a decision that should be made by the Island towns and the Martha's Vineyard Commission, albeit in consultation with the Executive Office of Energy and Environmental Affairs.
The Oceans Plan should restore to the Vineyard the control over energy projects in its coastal waters that the Oceans Act and the EFSB threaten to destroy.u
