Thursday, April 2, 2009

Coastal Agency in Danger of Going Under

By Peter B. Lord

Journal Environment Writer

Rhode Island’s coastal agency, charged with regulating every marine development — from coastal mansions to a billion-dollar wind farm — is in trouble.

The council’s leadership has been questioned in a major court decision and its membership has become so decimated that it has been unable to vote on coastal development issues for the last two months.

The recent court decision set aside the vote the Coastal Resources Management Council took on one of its most controversial cases in a decade — expansion of Champlin’s Marina on Block Island. The hearing judge found the council’s chairman and vice chairman, Micheal Tikoian and Paul Lemont, prejudged the case and committed so many errors during the several-year-long hearing process that she disqualified their votes.

“Like Tokoian, Lemont lost his presumption of honesty and integrity as an agency adjudicator and became an advocate,” wrote Judge Netti Vogel. The decision will be appealed.

The decision came as the number of council members, unpaid citizens who set coastal policies and vote on major applications, was already depleted as a result of another major court opinion in December.

The council is failing to obtain quorums to do business. Usually it meets twice a month. But it hasn’t held a meeting since January.

Governor Carcieri’s spokeswoman, Amy Kempe, says he is not prepared to nominate new council members until the General Assembly approves new enabling legislation for the council. But the legislature has several bills before it and none has generated wide support or showed signs of winning quick approval.

The situation is so serious that Brian A. Goldman, the council’s lawyer, took the unusual step of helping Sen. V. Susan Sosnowski, D-South Kingstown, write legislation and then appeared before her committee last Wednesday asking for quick action.

“We need a statute,” Goldman said. “We have things to move forward or that are starting to come to a halt.”

Compromise on some bill, Goldman said. “Don’t let the perfect get in the way of the good.”

For several years, the Senate has passed enabling legislation for CRMC. But it has died in the House, where leaders believed they should continue exercising the power to appoint half the council’s members. The House asked the state Supreme Court for its opinion, and last December it came down firmly on the side of Carcieri and affirmed his right to appoint the council’s members. Many thought that would settle issues about CRMC appointments.

But Sosnowski’s committee was given several differing opinions about the legal status of the current CRMC board last week.

Senate legal counsel Edward M. Fogarty told the committee that he believed that council members who had been appointed by the legislature could remain on the council until replacements were appointed.

But Goldman, in a Dec. 30 letter, differed. He said the Supreme Court made it clear that it would be unconstitutional for any legislative appointee to remain on the council after its Dec. 18 opinion.

Goldman advised the legislative appointees, Thomas Ricci, Gerald Zarrella and Joseph Shekarchi, that they were off the council. (All three happened to have voted in favor of the Champlin’s expansion and all three believe their dismissal was simple political retribution.)

Fogarty said the committee needs to act quickly, and he supported its plans to set criteria for future appointments, specifying that some come from small coastal towns and some from larger ones, for instance.

Sosnowski said she introduced two somewhat differing bills that could be merged if necessary, because she feels the future of CRMC is so important. She served on the council, stepping down when the Separation of Powers amendment barred legislators from serving on state boards.

“It’s imperative that we get something passed because it’s such a vital council,” she said.

But Kevin J. McAllister, president of Common Cause of Rhode Island, testified against Sosnowski’s bills, saying he believes it’s impermissible for the Senate to mandate that the governor make CRMC appointments from lists.

“It’s illegal and unconstitutional to set any mandates, qualifications or criteria for the appointments,” McAllister said. He said the Senate can express its will in a different manner, by exercising its right to advise and consent over gubernatorial appointments.

But then McAllister argued the council is in even worse shape than Goldman described. He said the presence of W. Michael Sullivan, director of the state Department of Environmental Management, on the council is unconstitutional because he hasn’t been approved by the Senate.

What’s more, he argued that only three of the current council members were approved by the Senate and can legally continue serving.

Goldman said those three are Chairman Tikoian and members David Abedon and Bruce Dawson. If only three members are legal, CRMC is basically out of business, but Goldman said he disagreed with McAllister’s interpretation.

Greta Abbott of the League of Women Voters and Jane Austin of Save the Bay also testified against Sosnowski’s bills, saying they set too many restrictions on the governor’s powers to appoint.

Now, Goldman said, it appears the council has lost its eighth member, Neill Gray, because he represented a local commission in Newport that did not reappoint him. That would leave just seven council members, the minimum the council needs to do business. And one of those members, the DEM’s Sullivan, needs to bring DEM matters to the council — matters he can’t vote on.

Goldman asked the committee to act quickly.

“We need members. We need a statute,” he said. “We have very important business to take care of.”

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