Sunday, August 14, 2011

The Not-So-New MOU: How the DOE Forgot the Public This Time

On Friday, August 12, the Department of Energy announced a new EIS contractor team to replace Normandeau and released the Memo of Understanding (MOU). In this post, a guest blogger reads the not-so-new MOU.

A Guest Blog                                                                    

Before turning to the latest affront from the DOE, the MOU setting forth the “rules of engagement” for the newly-announced EIS consultants, think back. Remember our mindset when the DOE started its process late last year?  We thought they’d be even-handed and fair.  We thought the public had as much weight with the DOE as Northern Pass and its sponsors. We believed if we led the DOE toward the public interest, they’d see it and embrace it.

We were so wrong.  Time and time again, the DOE’s actions have shown they’re nothing but a shill for Northern Pass. 

The public doesn’t have any material role in the DOE’s process.  Sure, there are public scoping meetings, public comments, a public website. But these just allow the DOE bureaucrats to check the box that says they listened to the public and then march off to do Northern Pass’s bidding.

The latest proof of “DOE-as-NP’s-handmaiden” comes from Friday’s announcement of the new EIS consultants (who replace Normandeau, but that’s subject to an asterisk, see #4 below) and the MOU between the DOE, Northern Pass, and the new consultant team.

Here’s how the DOE forgot the public this time around:
1.      Closed door process to choose EIS consultants.  Once again, just like Normandeau, the contractor selection was made entirely behind closed doors.  Well, closed to the public, but not to Northern Pass.   After the Normandeau fiasco, many interveners and others strongly requested that the DOE run an open, transparent process for contractor selection.  Come up with a group of candidates based on recommendations from NP and the public.  Allow public comment.  Then make a decision, with published reasons for the choice.  Well, the DOE completely blew off these suggestions for a fair and open process.  For all we know, the EIS consultants were pre-selected by Northern Pass and rubber stamped by the DOE.  With a closed process, there’s no way to tell.
2.      Northern Pass defines the EIS work and holds the purse strings over the EIS consultants.  You can’t make this stuff up.  The MOU assigns Northern Pass the responsibility of negotiating the “scope of work” for the EIS consultants.  In other words, Northern Pass, the applicant, defines key elements of the EIS review.  Does that sound fair to you?  Do you see anywhere that the public gets to provide input on the consultants’ assignment.  No, of course not, the public isn’t even on the radar screen.  It gets worse.  Northern Pass also negotiates the budget for the EIS work and is “solely responsible” for managing the consultants’ compliance with the budget.  With their work defined by Northern Pass and Northern Pass setting the budget and cracking the whip (“don’t look at that wetland or any WMNF alternatives, no money left in the budget!”), does anyone seriously believe the consultants will effectively be independent?  Here in the real world in New Hampshire, we all know that if you set the task and control the paycheck, you control the job.
3.      Northern Pass knows the EIS schedule, but the public isn’t told.  There’s a separate “Consulting Services Agreement” between Northern Pass and the consultants. The DOE is not a party to it. And guess where the schedule for the EIS work is set out – stuff like due dates, milestones, when the preliminary EIS gets completed, and when the final EIS is supposed to be all wrapped up?  Yup, the schedule is only in the separate NP/consultant agreement.  The schedule of work is carefully omitted from the MOU, so the public is kept in the dark.  The DOE knows the schedule, and hopefully one of the opposition’s sharp lawyers will be able to pry it out and get the schedule into the public domain.  But until then, we’ll know nothing on schedule.
4.      Normandeau lives (as the core data provider)Here’s a tricky point that could be big indeed.  Down in the MOU’s fine print is a provision that says Northern Pass is responsible for “providing project specific data and information” to the EIS consultants and “reviewing the EIS” for “accurate presentation and use of such data and information”.   In other words, it looks like the EIS consultants may not be gathering their own “data and information” about the environmental impacts, but will merely be incorporating the data and information supplied by none other than the applicant, Northern Pass.  And who’s done extensive work for Northern Pass to get the data together?  Normandeau.  It looks like there’s a real possibility that this EIS, with a “new team”, will be less new than we hoped and will instead be based on recycled Normandeau work. Why on earth is Northern Pass, the applicant for a federal permit, given the right to be the data source for the federal EIS?  Why wouldn’t the DOE insist on independent data collection?  Boggles the mind.
5.      Northern Pass gets special closed door sessions to change EISLet’s imagine there’s a proposal from someone at the DOE to do something sensible like have the EIS analyze the alternative of burying the lines.  Northern Pass disagrees.  What’s the process?  Northern Pass gets to have a special, closed door meeting with the DOE to try to smooth things out.  You know, like “sure, analyze burying the lines, but only on the existing PSNH rights of way (not highways or rail beds) because that’s our proposal.”  Does the public get a chance to weigh in?  No.  The public is shut out once again.

That’s the DOE’s process.  It’s hard to imagine any process with less of a substantive role, and with less respect, for the public. Not only is the process applicant-driven, but the public isn't even in the car.

Please forward this discussion to your US Senators and Representatives and ask them exactly what they plan to do to give the public a fair shake.  Ask them to tell you in writing.  Follow up.  And if they do nothing that is effective to give the public the role we deserve, unelect them.