Episode 75 Transcript: RECIPE FOR DISASTER
CLARICE: Welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everybody. I’m Marisa Desautel, an environmental attorney.
CLARICE: And I’m Clarice. And I’m still wondering how they counted all those fish.
MARISA: You’re so good with the references. The problem is I’m the opposite of elephant memory. I can’t remember anything short term. It’s embarrassing. So I recollect something about a fish count, but I don’t know exactly the reference.
CLARICE: Last week’s episode we talked about the Ohio train disaster. I’m now calling it train disaster. And we talked about how 3,500 fish died.
MARISA: That’s right. It was a very specific number.
CLARICE: And, dear listeners, for you folks at home, I spent the rest of the week shouting 3,000 fish in my house. The good news is I work from home and nobody else is in the house, so it’s just me.
MARISA: Except the cats.
CLARICE: Yeah. So it’s me home alone screaming 3,000 fish.
MARISA: Well with, today we decided to start our recording with some props because very organically Clarice is looking at the circular for her Easter shopping.
MARISA: And I’ve got a newspaper article that we’re going to be talking about. But before we jump into that, please tell us what’s on sale.
CLARICE: Ah. This week in the Stop & Shop circular — if you are a fan of Stop & Shop — we have some delicious buy one get ones. Buy one get one free Stop & Shop red or yellow potatoes, yellow onions, or carrots. That’s a buy one get one free.
CLARICE: And on your end?
MARISA: Yeah. My piece of information is less tasty. And before I dive into today’s topic which is about the Rhode Island Coastal Resources Management Council, I have to make a little bit of a disclaimer here. I, about a month ago, took the position as legal counsel to the Rhode Island Senate Committee on Environment and Agriculture. So when I talk about topics related to proposed legislation, I have to — I feel as though I should and have to avoid talking about anything that’s currently before the legislature. However, today’s topic is, while in front of the state legislature currently, has also become an issue of more public consumption because of articles like the one I’m going to refer to about what the state legislature proposes to do in terms of the Rhode Island CRMC the Coastal Resources Management Council. I think we’ve talked about this agency in other episodes, right?
[0:03:30] CLARICE: Yes. A few of them.
MARISA: And most of those episodes, if memory serves, which is not very trustworthy, we had highlighted issues with respect to offshore wind and aquaculture. What’s happening right now with the agency according to this newspaper article — and the newspaper that I’m referring to is Newport This Week. The version of the newspaper that I’m locking at is dated Thursday March 30, so it’s yesterday’s paper according to the Rolling Stones who wants it, but today I do. The particular article that I’m referring to is on Page 6. It’s called CRMC decision is, quote, slap in face to legislature. It’s written or authored by Deborah Ruggiero who is the chair of something called the CRMC Study Commission. Any questions so far?
CLARICE: I’m going to hold them. Keep going.
MARISA: All right. The article is not very long. Again, it’s in the Newport This Week. I think it was also published — oh, I don’t want to misspeak. I did read it somewhere else, though, so I’m pretty sure it’s available in other print and I’m sure it’s available online.
CLARICE: You did send me a Providence Journal link.
MARISA: I did. Okay.
CLARICE: So if that’s what you’re thinking of —
MARISA: Were you able to get access to it?
CLARICE: Yes. And we’ll put that in the show notes for you folks to read.
MARISA: Okay. I wonder if I can also find the Newport This Week. This is an excellent newspaper. I read it every time it comes out. It’s got a lot of good local news and then obviously some more state-wide issue. But basically the article talks about this study commission that was put together last year and the purpose of the commission was to take a look at what was happening within the agency and more specifically the council itself.
The CRMC is a weird agency. It doesn’t operate and it’s not set up the way that other state agencies are. The CRMC has a staff and an executive director who are, in my experience, wonderful, intelligent, smart, common sense smart, I mean, and very diligent in their work, so they’re not the issue. The issue is the council, c-o-u-n-c-i-l. The council is made up of folks who are appointed by the governor and so you can imagine the amount of political will that is inherent in that council because the governor is putting folks on there that he or she wants to.
The CRMC staff and the executive director work every day like a regular state agency on permits and projects and approvals while the council meets — it’s either one or twice a month. And the setup is that the CRMC staff puts forth a recommended decision with supporting materials and testimony and then the counsel can hear from members of the public including a project applicant and people that are objecting to the application. Then the council deliberates and votes and they make a decision on essentially what the staff recommendation is. In my opinion that is a recipe for disaster and, in fact, has been a disaster because if you’re serving on the council you’ve been appointed by the governor.
It doesn’t necessarily mean that you’ve got the experience, the education, or the expertise to be looking at issues related to science, data, environmental quality, environmental issues, coastal issues, coastal policy. In fact, the members of the counsel have been liquor store owners, I think an accountant. There are a couple of attorneys historically and currently that do have the experience and expertise, in my opinion, to be on it, but they’re never the majority. And so they’ve got a qualified vote, but oftentimes they’re outvoted by people that are not qualified. So let me stop there because that’s a lot of soapbox time. And tell me what you think about that.
[0:08:55] CLARICE: Well, now that you’re off the soapbox, I’m going to hop on it. How can you make decisions if you don’t have a full understanding of what you’re deciding on?
CLARICE: I mean, how is that different from me looking under the hood of somebody’s car and being like, sure, you need all of these different things and I don’t know what I’m looking at. How did we get to this point? Who thought this was a good idea? Can we have parameters around it if it needs to be elected? Could you at least have some sort of background requirement? Could you at least be in the right arena or — or have some applicable knowledge?
MARISA: Yeah. Sure.
CLARICE: Can you play the sport before you join the team, please?
MARISA: That’s a good way to put it. That’s a great way to put it. Now, I noticed that you said if you have to be elected and that is a very important point that I would like to highlight. Being elected means that the people have chosen you. With respect to the council, the people have absolutely no say. You know who does, the governor. So the people vote for the governor and they elect him or her, but that’s it. The governor gets to decide who he wants on the council.
MARISA: You didn’t know that.
CLARICE: So, oh, okay. Hold on. Now I’m extra confused.
CLARICE: So the council is appointed?
MARISA: Yes. By the governor.
CLARICE: And they’re not required to have, say, additional environmental or, I don’t know, I would say maybe even a science background or a city planning background, or. No? None of that?
MARISA: According to this article it says, quote, the council members are politically appointed volunteers who are not required to have any expertise in environmental or coastal matters, yet they are shaping the future of our state’s coastal resources and impacting communities, end quote. So that’s how the council works currently. The article then goes — you have such a look of shock on your face right now.
[0:11:54] CLARICE: Why? Why are you there?
MARISA: It’s Rhode Island and it’s been a point of frustration for some of my clients because it’s so clearly not functioning. And now the legislature outside of the work that I’m doing is now writing articles about it and making an attempt to make some reform. The reason for the legislature being more vocal about the CRMC and writing articles into the newspaper and issuing press releases and formal statements about what’s going on is because of a very recent action taken by the council. Now, remember, this is not the CRMC as an agency. This is the council, two separate bodies, two separate groups.
The council, these folks appointed by the governor, decided to vote to overrule a staff recommendation that relates directly to the general assemblies authority to provide oversight and decision making in approving something called a submerged land lease. We’ve talked previously about something called a public trust doctrine which means that the state holds title to navigable waters in trust for the people to use it for fishing, swimming, recreation, sunbathing, so on and so forth. So you’ve got the public trust doctrine. There’s also something called the Submerged Land Lease Act in Rhode Island and that statute says that the general assembly shall have authority over approving and deciding upon land leases in submerged lands.
So we’re talking about [inaudible] river or the ocean within the state’s territorial waters greater than 25 acres. So anything under 25 acres, the CRMC looks at and approves and deals with. Anything about 25 acres and it has to go to the general assembly. Well, the council decided in December that it was going to allow a particular project applicant who’s building an offshore wind project to skip the general assembly. The council said, no, we think that we’ve got the jurisdiction, not the general assembly, and we’re going to approve this project and we’re going to tell you, project applicant, that you don’t need to go to the general assembly, you can just get approval from us.
Now, let me just highlight that CRMC staff and the council’s own attorney said to the council, you guys have to go to the general assembly. It was the council that deliberated and voted and said, nah, forget you, general assembly, we’re going to grant this lease, we think we have the power. So based on this article and the timing and how everything is playing out, that was like the straw that broke the camel’s back. There were previous issues with the CRMC, major issues with the CRMC previously, but this is what really appears to be driving reform now with the council.
[0:16:10] CLARICE: This is some Bravo level drama.
MARISA: It’s very dramatic.
CLARICE: Yeah. So hold on. Let’s back up just a little bit.
CLARICE: So in my mind CRMC does a lot of the technical work, has a lot of — so if we’re going to break this down, CRMC is a place where you would have to apply for a job. It’s not appointed. It operates as an agency and they’re out there sort of upholding regulations and making sure those rules are being followed?
MARISA: That’s right.
CLARICE: The council is doing — what does the council do?
MARISA: They deliberate and vote.
CLARICE: Cool. And they’re picked by the governor.
CLARICE: What does the general assembly do?
MARISA: They make law.
CLARICE: Okay. Listeners, do you get — are you with me on this? So the council is deliberating on possible laws or motions or the potential for an action to take place and if any time there’s the option that something is going to get put into motion it has to get passed through the general assembly who checks to see whether or not they approve this is within bounds and they just said, no, we’re going to skip you?
MARISA: Sort of. The, nah, we’re going to skip you part, yes. That part is accurate.
MARISA: The council does not make law. It deliberates and votes upon specific project applications. So I use the offshore wind example. It’s a great one because there’s a lot of those happening right now. But aquaculture, offshore winds, if you’re looking to put a dock in front of your house, that’s the kind of thing that you need to apply to the CRMC for approval for that type of project.
MARISA: With offshore wind there’s something called a category B assent. It’s a state process. It’s a state application. You put in your application materials. CRMC staff reviews it. They make a recommended — they write out a recommended decision and they present that to the full council and that’s what the council deliberates and votes on is the application and the staff recommendation. And that’s an appealable decision. You know, it works a lot like any other state agency that you get a final agency decision and you can appeal that to superior court. So it’s a judicial process while the general assembly is legislative. So they make the law and then CRMC — to a certain extent CRMC is interpreting the law and in this case with the submerged land lease situation that’s exactly what they did. They made an interpretation and now they’ve got this as a result.
[0:19:45] CLARICE: So in keeping with the Bravo drama theme —
CLARICE: — did the general assembly hear?
MARISA: Oh, yeah.
CLARICE: And what did they say?
MARISA: They are not happy. They are an unhappy group of lawmakers right now about this particular activity. So that’s why I was saying this newspaper article and the one that I send you in the Providence Journal which I think is the same article, this talks about the recent CRMC decision under the Submerged Land Lease Act, why it’s such a slap in the face to the legislature. So they’re not happy.
CLARICE: Well, I wouldn’t be either.
MARISA: No. It’s like, okay, we recognize CRMC has made some mistakes and the council maybe needs to be replaced. Maybe we need to look at a new structure for the entire agency. Maybe they need more attorneys. There’s a lot of different options being considered, but.
CLARICE: I mean, some type of subject matter guidelines would be helpful.
CLARICE: If you’re making these massive decisions about our coastlines, our oceans, what’s going to be entailed, you got to at least understand what you’re reading about and what’s being proposed to you.
CLARICE: And, I mean, I hate to say like some of the examples of the folks that you were talking about — you and I doing this podcast, I hate to say that I might have more exposure than them because I have very, very, very little exposure and that’s scary. Again, like just a couple of ladies doing a podcast and I don’t think I should have, you know, more familiarity and I just — they should sort of be not necessarily an expert but somebody who is comfortable having these conversations.
MARISA: Well, why can’t they be an expert? Imagine that.
CLARICE: All right. Yeah. Let’s shoot high. Experts would be nice.
CLARICE: Are they allowed to consult with experts? Can experts be brought in on stuff? That’s another good question.
MARISA: Well, the expert really is the staff, the executive director and all of the staff that works at CRMC. They’re the experts. They’re doing the work every single day. They’re using the red book, the coastal regulations, the Coastal Zone Management Act which is a federal statute. They’re using that information every day. They’re a lot like the Department of Environmental Management in that regard. They are the expert.
[0:22:44] CLARICE: Well, I know I learned about this structure five minutes ago, but that sounds like a great solution to this problem.
CLARICE: That sounds like a panel of council members right there.
MARISA: Yeah. Have them make the decision just like DEM. You get a decision. If you don’t like the decision you appeal it. There’s an administrative —
CLARICE: There’s an appeal process, yes.
MARISA: — appeals process. You have an administrative hearing with the hearing officer and then if you don’t like that result you appeal that to the Rhode Island Superior Court. And if you don’t like that result, you can try to appeal it to the Rhode Island Supreme Court. I don’t know.
CLARICE: It sounds like there’s a wheel that’s already been invented and it sounds like we’re trying to work with a square here.
CLARICE: I don’t love it.
MARISA: No. It’s terrible.
CLARICE: I enjoyed the gossipy side of it. Knowing that it’s real and in practice I hate it.
MARISA: All right. Well, that’s all I got on that topic today.
CLARICE: Well, also, buy two get two free Coca-Cola 12 or eight pack. Is it AHA or ahh seltzers? Have you seen that brand?
MARISA: That’s not within my expertise.
CLARICE: I don’t know. It’s a brand of seltzer water and it’s AHA and it’s all capital, so I’m not sure if you’re supposed to say the letters or if you just go ahh. I don’t know. They’re not bad, though.
MARISA: Well, thanks, everybody.
CLARICE: If you have any questions, comments, want to apply to, I don’t know, try to be on the council but need to talk to the governor — who knows how all of this works. I’m going to be really stressed for the rest of the day, guys.
MARISA: Yeah. Yeah.
CLARICE: You can e-mail us at Help@DesautelESQ.com. You can reach us on our socials at Desautel Law. We are an Instagram, Facebook, Twitter. Our videos are on YouTube. And have a good one.
MARISA: Thanks, everyone.