Take My Breath Away…
The council faced a room filled with supporters and opponents of the biomass plant, but the supporters clearly had an advantage in homemade signs and possibly numbers as well. Both sides were fairly civil throughout the process, but the opponents of the plant held their colorful signs highest on their experts’ best points and throughout much of their opponents’ comments.
From a legal standpoint, the Council’s options are limited to revocation of the 2008 permit. According to some legal sources, they can vote to revoke it, but as with granting a special permit they need 9 votes. If last night’s vote to close the meeting is any indication, they probably are close if not past that threshold. However, the council can only revoke it for “just cause.”
As former City Solicitor and City Councilor Pat Markey put it to the Council, they get to decide what just cause is, but they have plenty to base their conclusion on. Markey noted (he was one of two councilors in 2008 that voted no, Rosemarie Mazza-Moriarty was the other) that the original permit was for a recycling center. Markey explained that that made sense at the time because the original project called for burned construction and demolition waste to power the plant. That idea was later abandoned as skeptical regulators demurred. As such, the new plan uses so-called green wood chips. These chips are sometimes from tree debris, but other times from living trees. Markey argued that the new plan fails to be recycling as that term implies previous used material. This plan is an incinerator, instead, which requires a separate special permit, Markey said.
|Pat Markey with Karen Powell in 2007 (WMassP&I)|
Markey said the permit change, the change in truck movements, the lower threshold for regulation, and the EPA’s own misgivings about biomass amount to plenty of “just cause” for the council. Furthermore, he assured the council, the worst Palmer Paving could do is sue, win and get their permit anyway. Susan Reid, Massachusetts Director of the Conservation Law Foundation, a New England environmental legal group, argued that the increase in relative pollution by the plant could actually negate any positive effect. Among her arguments was that the pollution increase could raise local temperatures and thereby increase energy usage for Air Conditioning.
A Northampton doctor that works in Springfield noted that the added pollution could have a particularly deleterious effect on days with air quality alerts. Others spoke to the additional harmful effects caused by the additional truck trips. Michaelann Bewsee, an activist in the city, took great pains to note that she and others had done their homework on the situation. An asthma sufferer noted a connection to asthma rates and school absenteeism.
Representing the Biomass plant were Attorneys Frank Fitzgerald and Thomas Mackie. Fitzgerald protested the legitimacy of this hearing and claimed that the only “just cause” for the city to revoke the permit was non-compliance with the original permit. At times he and his co-counsel claimed that even the original permit were unnecessary. Fitzgerald also made several references to the direct economic benefit to the city.
|Atty Mackie (lawmso.com)|
Attorney Mackie, a Boston-based lawyer specializing in environmental issues, spoke more to the meatier legal issues, but with an at times condescending and confrontational tone. He began by appealing to bland notions of liberty and land use, but moved on to tacitly threaten litigation should the council revoke the permit. He then claimed that the council lacked virtually any authority under either state law or its zoning ordinances to revoke the permit anyway.
After Mackie spoke the testimony descended into a battle of the experts. Among the nuggets from the plant supporters was a claim by a resource specialist that the region produced over a million tons of dead wood annually, which is more than enough to feed the plant. He also said that the carbon release from the wood would happen whether burned or under natural decay. To the first point, an opposing expert said that pool of wood chips available are used for other sources. To the second point, we can verify that although generally (not universally) burning only recently deceased matter emits less carbon dioxide than fossil fuels, it still releases it faster than under natural decomposition. Furthermore the carbon neutrality is lost because razed forests needed to fuel plants can no longer sequester carbon dioxide in the air.
A traffic expert for the biomass developers dawdled on the fact that the city’s infrastructure could support the trucks, but spent little time on how much more pollution the extra trucks would emit. The expert also claimed that the added trucks were well within the models he had used when the permit was originally approved.
|Councilor Fenton (Facebook)|
Ward 2 Councilor Mike Fenton disputed many of the plant proponent’s arguments about the lack of change since the initial permit, mentioning a recent study commissioned by the city. Although the opponents acknowledged some of the deviations mentioned in the report, they stuck to their position that those changes were within their original projections.
A public health expert for the developers tried to dispel any connection to asthma, which was by far the most talked about respiratory disease. He noted that outdoor air quality has improved even as asthma rates had gone up. The opponent’s health expert noted that bad air had myriad other health effects and that people at risk are warned to limit outdoor activities when ozone levels rise, which are partly the result of burning fuel. A representative from the IBEW likened the opponents to a lynch mob.
|Atty Reid (clf.org)|
In rebuttal, Susan Reid, the CLF attorney, called Mackie’s implications on property rights and liberty “absurd.” A speaker for another environmental group noted that the scrubbing technology is not yet complete. Pat Markey, emphasizing that there was, in fact, not enough excess wood, noting that a Westminster, Mass. plant had to resort to cutting down live trees for fuel. Markey also said that a court reviewing revocation would grant some deference to the council and only look for arbitrary, unreasonable or capricious action on the latter’s part.
In his rebuttal, Mackie tried to break down Markey’s contention. He claimed that a court would review the decision, de novo, which in legal terminology means that they would look at the entire record anew. Then they would compare it to the council’s decision. That really would not change anything, however. De novo is most significant when an appellate court is reviewing another court. For an appeal from an administrative agency (which is the City Council’s function essentially in this case), de novo is common, but the standard to overrule is still arbitrary and capricious. Showing the gusto necessary to read a script for the part of a villain in a movie, Mackie then accused the CLF and other groups of being national groups on a crusade. He then argued they would be nowhere to be found when he won.
|Councilor Lysak (campaign site)|
Then David Callahan himself, the head of Palmer Renewable and the paving company stood up to speak. Scanning the audience appearing half-intimidated and half-disgusted, he enumerated his reasons for building the plant and name dropped Governor Deval Patrick and a call of his (we are waiting reaction from Gov. Patrick’s office) to keep “wood out of the landfills.” Callahan also noted the amount of business he, his family and the city have had over the years. He also claimed to have neighborhood support (which Ward 8 Councilor John Lysak noted had been rescinded) and to have scoured the world for the best technology.
With that, the testimony ended and Council President Tosado attempted to close the meeting with the intention of holding a vote next Monday. At-large councilors Tim Rooke and Jimmy Ferrera wanted to postpone the vote until the state issued its air quality permit, but few on the council felt the need to do so. Ward 6 Councilor Amaad Rivera made a motion to close the meeting and after overcoming a motion for reconsideration, the council did just that.
Speaking to WMassP&I after the vote, Lysak noted that he wished a vote could have been taken tonight, but was pleased the hearing. He found the plant supporters’ counterargument to the opponents “unconvincing” and remained committed to voting to revoke the permit. The proposed location of the plant is in Ward 8.
Pat Markey said he “disagrees” with Mackie’s understanding of the city’s zoning ordinances. When asked if the city’s faced any other legal threats besides denial of the permit, Markey said that the developers would have to mount a constitutional challenge to the city’s actions and allege a lack of due process. He noted however that the two and a half years of process since the first permit is plenty of proof to dispute a lack of due process.
|Danish Wind Farm (CapeWind.org)|
When WMassP&I spoke to Susan Reid, the CLF attorney, she made a note that her group was not national (compared to the Sierra Club, which is). She said her group also supports other “true green energy” projects like Cape Wind. She also said her group has been involved in biomass in this area since 2008.
Reid also noted that the Environmental Protection Agency is taking a second look at biomass. An article on the New York Times website dated May 17 mentioned that biomass is thus far included in plans to regulate emission, “chilling” the biomass industry. She mentioned that biomass was at first given a free pass as renewable and environmentally friendly. However, some alarm was raised in the context of biofuels’ problems (which hold promise, but remain fraught with ecological concerns). Most biomass plants use wood and the growth in biomass had lead to cutting down trees to fuel the plant.
Reid said the EPA is just starting a three year review of biomass and that her group has sued the EPA to regulate biomass like they would regulate a fossil fuel plant’s emissions. It is worth noting that had the bill to curb the EPA’s regulatory authority passed the Senate a few weeks ago, the agency would be unable to regulate biomass plants in addition to other air pollution sources. Our junior senator Scott Brown voted in favor of that change and has engaged in a very public war withe League of Women Voters over it. Reid noted that her organization, as a 501c3 did not advocate any political action, but did encourage Bay Staters to register their feelings with the senator. Notably, the LWV ad in question also encouraged voters to contact Brown and was not, in fact a partisan “attack.” Brown has attempted to deflect the issue and make it one of politics and not policy.
For now the council awaits a legal opinion from City Solicitor Ed Pikula. Some councilors have complained that the mayor’s office has been too cozy with Palmer Renewable. Pikula has often given legal opinion on the biomass issue with which councilors have disagreed. Because Pikula is the city’s (and the council’s) top lawyer, but an appointee of the mayor many councilor are expected to view whatever Pikula says with some skepticism.