A Broken System

We're certain it's not just us who can't shake the feeling that something has gone tragically awry with our system of representative government. Far too many of our elected and appointed leaders behave as though their primary job is to funnel the tax dollars of the many into the hands of the very few--and to spare no expense, no destruction, no damage to the environment, the culture, or the body politic in order to get this one job done.

The attitude of energy companies toward elected officials reminds me of Bill Cosby's line: "I brought you into this world. I can take you out and make another one just like you."

In such an atmosphere, the persons appointed by officials so utterly beholden to corporate interests must be insecure indeed.

Any unseemly evidence of enforcing the law or representing the public interest and, wham-o, not only are such persons likely to lose their government job, they're likely to be considered kryptonite by the private sector they were once charged with regulating.

All this underscores the point that in America today, if an industry's bottom line is big enough, the industry simply assumes it's above the law and acts accordingly. Such industries certainly need suffer no fools still committed to the antique notions of regulatory enforcement or protection of the public trust. Quite the contrary, they simply have these bothersome naifs replaced with souls more amenable to toeing the line.

How's this working out for us?

If the behavior of the elected and appointed officials in permitting Highland New Wind Development (HNWD) is any indication--not so good.

A Walk Down Memory Lane

The brief history of the case between the Virginia Department of Historic Resources (DHR) and HNWD as set forth by the State Corporation Commission (SCC) Hearing Examiner in his January 25 Report beggars common sense, if not credulity.

One doesn't have to know another thing about the case to read the Hearing Examiner's history and draw two obvious conclusions: 1) from the get-go, the wind developer was bound and determined to avoid a true evidentiary hearing, where proof of impact on Camp Allegheny Battlefield would be presented to the public and the press, and 2) the system allowed the developer to get away with it. The system aided and abetted the developer in avoiding public disclosure of the true costs of their project.

Consider this: If the public hearing granted by the SCC in response to DHR's August 19, 2009, complaint had occurred, and all of the accumulated visual impact evidence had been presented, and DHR had deposed historians and archaeologists and members of the national historic preservation community to testify, yes, it is quite possible that the ultimate outcome would be the same.

But a lot more people would know about it, wouldn't they? A lot more people would have a personal, vested interest in the perversions of this process. And, at the very least, all of those people would be on-guard to avoid such a travesty in the future.

But that’s not the way it turned out.

We think it’s worth asking why. Until we identify the problem, we have no hope of fixing it.

So, What Really Happened?

Well, we have no crystal ball, nor any talent at ESP, but we have made a few educated guesses.

First, we think DHR had no real grasp of the plague of troubles it was setting itself up for when it wrote that letter of complaint on August 19. The agency either did not comprehend, or chose to ignore, the fact that HNWD would do whatever it took to win. And why shouldn't they? The company had an entire state political structure aligned to insure such victory.

Before entering the fray, DHR needed to commit to giving as good as they got. Anything less and the entire exercise could end a catastrophe—not just for Camp Allegheny Battlefield, but for the agency as well.

Subsequent events seem to indicate that either DHR did not fully grasp what was at stake, or the agency knew itself to be powerless at the outset, or some combination of the two.

I keep remembering Director Kathleen Kilpatrick’s statement to me, after I introduced myself to her at the Motion in Limine hearing on September 23. “You people need to understand my hands are tied.”

If so, why did the Director file the formal complaint to begin with? Could it be because, a month earlier, having received a raft of letters from the public imploring her to do something, and feeling rather miffed at the way HNWD had jerked her agency around for six years, she thought to herself: Why not?

Yet, by the time of the September 23 hearing, she’d already been informed of the error of her ways, not only by HNWD’s well-connected attorneys, but by others as well?

Was her comment meant to indicate that even then she was backing-off, hoping for a graceful way out?

We don’t know.

We do know the record shows that DHR did it’s level best through October and November to avoid a hearing, even going so far as to request on November 5 that the evidentiary hearing scheduled for November 10 be canceled and “continued generally” and thus removed from the SCC’s docket.

Odd behavior indeed for a plaintiff, unless that plaintiff were operating under the belief that removal of judicial pressure would be an aid to negotiations. However, given this plaintiff’s multi-year record of interaction with the defendant, it’s hard to imagine how DHR, in counsel with the Virginia Attorney General’s office, could arrive at such a conclusion.

Brightside asked in these pages back then, “Why would DHR act to stop this process now? What do they have to lose in letting a hearing go forward?”

The fact that the new Governor of Virginia was elected on November 3, and is a good buddy of the chief counsel for HNWD is, we are sure, of no consequence whatsoever.

It just can’t be, can it?

Kabuki Theater

Kabuki is a highly stylized Japanese dance-drama known for often-bizarre and misleading make-up and dress.

The term kept popping to mind during December’s theatrics, with it’s flurry of motions and responses between DHR and HNWD. But the idea gained much greater resonance after we obtained the November and early December email correspondence between the Assistant Attorney General (AG) and the chief counsel for HNWD, included as an attachment to the Stipulated Chronology required by the Hearing Examiner on December 22.

Notwithstanding the Assistant AG’s indignant response, December 17, to HNWD’s claims that DHR was requesting monetary payments as mitigation for impact to Camp Allegheny, the email correspondence indicates that was precisely what DHR, through the Assistant AG, was doing.

As corroborated in the Hearing Examiner’s January 25 Report, DHR never asked HNWD to take action to mitigate impact of the wind development on Camp Allegheny. They never asked the developer to do what The People requested, which was to remove or relocate the three closest turbines. They only asked for money, in amounts varying from $150,000 to $250,000 to be paid over 10 years, ostensibly to be used to create pamphlets about the site, increase tourism, and reapply for National Historic Site status after the turbines had been erected as planned. All money to be spent and activities to occur in a jurisdiction over which Virginia DHR has no authority.

Although money for pamphlets, tourism, and applications sounds great, we have to agree with the Hearing Examiner in his conclusion that none of these expenses mitigates the visual impact of the wind utility on the site, and none of them fall within DHR’s purview.

Removal, relocation, or reduction in size of the wind turbines located in Virginia would, logically, have provided some mitigatory effect. And would have fallen, clearly, within DHR’s purview.

The record shows that DHR never requested these actions.

Why?

We don’t know.

Did DHR and the AG’s office act out of naivety or political necessity?

Claims of naïve credulity are hard to swallow.

In his last brief, the Assistant AG made the point that it was beholden upon Virginia to protect the historic interests in another state that would be impacted by a Virginia development. Yet he failed to assert that Virginia should take any action, on Virginia soil, to mitigate that impact. Instead, he asked for money to be paid to DHR after the damage to a site in WV, and approved by VA, had already been done.

We agree with the Hearing Examiner’s conclusion that such as request is nonsensical if what one claims to want is actual mitigation. Money does not equal mitigation.

Looking Ahead

We predict that the DHR Director’s days are numbered.

It’s quite ironic, really. Attorneys for HNWD want her replaced for her so-called obstructionist position. DHR dared stand in the way of wind power.

The People SHOULD want her replaced on much more provable grounds. DHR did not stand firm for The People in the face of wind power. DHR did not, by any definition of the term, put up a good fight.

When all is said and done, HNWD is getting what they want, albeit after a few months of AG-enabled Kabuki Theater.

The curtain fell on January 25.

As it stands, We, the People, get absolutely nothing from the four-month exercise but a tax bill.

What are we going to do about it?