Environmentalists make law a powerful ally

House Bill 7014 before the R.I. House Environment and Natural Resources Committee appears, at first glance, innocuous enough. The bill would add just two sentences to Rhode Island law by requiring ships more than 150 feet in length and carrying hazardous material to maintain at least 25 feet of clearance under all Rhode Island bridges.
But the 38-word amendment could spell the death of a proposed liquefied natural gas (LNG) facility in Fall River because the ships carrying the LNG could not meet the clearance requirements. If passed, the law would secure a major victory for environmental groups opposed to the facility, though the bill never mentions the words “environment” or “liquefied natural gas” or “Fall River.”
The roughly seven-year-long battle over whether to allow Weaver’s Cove Energy to construct an LNG terminal in Mount Hope Bay has been a prominent example of environmental groups’ use of creative legal maneuvers to advance a cause. Five years ago, a Massachusetts congressman slipped a little-noticed provision into a $286 billion transportation bill that designated the Brightman Street Bridge as a historic landmark that could not be demolished. That effectively blocked the initial plan that would have brought massive tankers too big to fit under the bridge directly to the proposed onshore terminal.
“That sounds like A-level work to me,” said Jared Goldstein, an associate law professor at Roger Williams University. “It’s realizing that – as lawyers often do – that there are multiple ways to attack a problem. [A bridge] is not an obvious candidate to stop an LNG facility.”
But obvious candidates often do not work. Despite a massive public campaign, environmental groups proved unable to dissuade the Federal Energy Regulatory Commission from approving various incarnations of a plan to deliver LNG via ship to Fall River. So when the obvious route fails, environmental advocates, policy experts, sympathetic public officials and lawyers hunt for legal alternatives. “People often have their own idea that law is dry and rational, but really there is a lot of creativity in law when you have to figure what law might apply here,” Goldstein said.
Jerry Elmer, staff attorney at the Conservation Law Foundation’s Rhode Island chapter, makes that his job. He spends much of his time matching laws never designed with environmental groups in mind to the latest environmental fight.
Elmer said the organization routinely files records requests under the state’s open records laws. The records often prove useful in exposing violators of environmental laws that the R.I. Department of Environmental Management has not pursued aggressively. Elmer said the organization used open records laws to obtain the report of a governor-appointed panel that studied the operations of the Rhode Island Public Transit Authority. When the governor refused to release the report, Elmer fired off a letter.
“It was a one-paragraph letter under the Open Records Act that pried all that information out and that is not an unusual” example, Elmer said.
Save The Bay Director of Advocacy John Torgan said much of the work environmental groups like his do remains below the radar. Yes, environmental organizations work toward the passage of major legislation such as the Clean Water Act and partake in dramatic courtroom battles made famous by the likes of movies such as “Civil Action” and “Erin Brockovich.” But most of the time, Torgan said, the work of lawyers “may not be as sexy, but it’s just as important.”
Torgan said Save The Bay lawyers have battled projects on the grounds that regulatory bodies failed to properly advertise the meeting, follow generally accepted rules of procedure or provide opportunity for public comment as required by law.
“The threat of legal action, on open meetings for example, is often enough to get the government to do the right thing,” Torgan said. But such strategies can work both ways. When the R.I. Coastal Resources Management Council (CRMC) denied a request by Champlin’s Marina on Block Island to expand, the marina appealed to court, arguing the council failed to follow proper procedures. A judge agreed and environmental groups appealed to the R.I. Supreme Court, which sent it back to the CRMC in a Feb. 18 decision.
As the case made its way through the courts, town officials and environmental groups on the island moved to prevent a similar expansion in the future. Lawyers dredged up a decades-old court ruling that said the town owned the bottom of the Great Salt Pond, the island’s inner bay where most marinas sit. In short, an ordinance passed last year requires anyone filing a request with the CRMC that seeks changes to the pond’s bottom – say driving a piling for a dock – to have the town sign off on the application.
“That was creative and that was pretty much an outgrowth of the Champlin’s case after ownership alone didn’t take care of the regulation part,” New Shoreham Town Manager Nancy Dodge said.
More recently, neighborhood groups opposed to a residential complex at India Point in Providence fought a proposal by the city to rezone the waters off the former Shooters nightclub property. The groups successfully persuaded the CRMC to maintain a zone that requires developers to prove that their project would not interfere with neighboring waterfront industrial uses.
David Riley, co-chair of the Head of the Bay Gateway Committee, said the theory was that a developer of a residential complex would have a difficult time proving that a new residential complex and existing operations like tugboat operators would be compatible.
“I think the public tends to think of law as always as a straightforward thing and it’s not,” Riley said. “It can be used in lots of different ways, and that’s what we’re doing.” •