Cape Vincent Wind Farm: September 2013

Kathleen Burgess September 18, 2013

Secretary to the Siting Board

Re: Matter Master: 12-02056/12-F-0410

Application of Cape Vincent Wind Power, LLC, for a Certificate of Environmental Compatibility and Public Need to Construct an Approximately 200-285 Megawatt Wind Electric Generating Facility in the Town of Cape Vincent, New York.

Dear Secretary Burgess,

Please accept this letter from me and post it with the other public comments that have been submitted in connection with the referenced matter. I understand it is longer than the hundreds of other comments that have been submitted to date. However, I sincerely believe I present here a set of facts and observations that should have a direct bearing on the resolution of the matter and staff judgment about the application process that is pending.

One year ago this week, on September 17, 2012, British Petroleum (BP) took its first step in applying for an Article 10 review process by submitting a Public Information Plan for its Cape Vincent Wind Farm project to the Department of Public Service staff .

Introduction: On August 4, 2011 The New York Power Act (Article 10) was signed into law by Governor Cuomo, re-authorizing the state to oversee and regulate the siting of new and updated electric energy generating facilities, stripping the decision making process away from local communities.

Governor Cuomo acknowledged there would be controversy associated with siting issues, but that both sides in any siting controversy would be heard in a “fair process.” From the standpoint of a small town like Cape Vincent, New York, that has been the subject of major wind power siting designs for almost a full decade by a corporate giant coupled with the loss of control over the decision making process to a distant state Siting Board, a fair process now becomes a vital issue of survival for that community.

When Governor Cuomo and certain members of the Legislature expressed the need for Article 10, one of the major factors cited was the need to bring the entire siting process out into the

open and above board. Too often, wind developers had been operating in a clandestine fashion, recruiting local public officials to become their leaseholders and, in full effect, their local agents. Obvious ethical compromises created by these arrangements were of no apparent concern to the developers, not least of which in this respect was BP in Cape Vincent.

This kind of corporate behavior no doubt led the United States Environmental Protection Agency to recently characterize BP as a corporation that "lacks business integrity (New York Times, Nov. 15, 2012). Furthermore, this type of behavior by a company currently seeking an Article 10 project approval should be exposed and brought to light before a decision is rendered by the Siting Board – or even before an application is considered sufficiently complete to put before the Siting Board.

Bad conduct should matter. We would certainly hope that the Article 10 process is not indifferent to persistent ethical lapses by an applicant.

BP's agents and allegiances: What is apparent is that BP sought to distance the company from any direct involvement in public outreach and community discourse, particularly activities that might have had a secretive or otherwise negative tone or association. To do this BP employed a community outreach consulting company, Trieste Associates that in turn created, nurtured and supported a community activist group taking the name Voters for Wind (VFW). It was no coincidence, of course, that VFW was comprised of many BP leaseholders or others who had a financial stake in the BP project coming to fruition. By any measure, VFW membership includes a very small minority of Cape Vincent residents. It is anything but a “grass roots” organization.

The Article 10 application process requires BP to engage the community through a Public Involvement Plan (PIP). BP in its revised PIP describes their relationship with Trieste Associates and VFW this way:

“In 2007, BP retained the services of Trieste Associates and the company’s team of public outreach experts to assist with planning events to educate and engage the public. As part of this effort, BP assisted a group of local wind power supporters in the Towns of Cape Vincent and Lyme to form a group known as Voters for Wind.”

BP is acknowledging a direct link to VFW as well as the thinly buffered relationship through Trieste Associates.

BP's Agent Trieste Associates: Marion Trieste is the principal and founder of Trieste Associates. She provided a remarkable insight into her role and activities in a July 2, 2009 Wind Powering America Webinar. In the webinar Trieste describes forming Green Energy Outreach Services (GEOS) to

“help our clients in the national and international wind business to promote these types of projects all over the northeast.” She talked about her association with VFW in Cape Vincent and BP.

“And this group here decided to call themselves (voter) for wind to let it be known --they actually established themselves two years ago. And I worked with them with a BP wind power project here. BP was - is the developer that I'm - I've been working with there.”

Trieste makes the case as to why BP needs to remain below the radar screen in the public eye:

“I always tell these developers (BP), you know, you're there to help but pretty much stay away because, you know, we don't want to be contaminated by, you know, people thinking that they're just being used by the wind developers.”

Trieste outlines why her program is vital to the interests of developers like BP:

“We can have Barack Obama”, we can have all of our politicians talking about using more renewable energy but when you start putting these, you know, turbines, large turbines in people's view sheds, it's a totally different story.”

She continues:

“So every little locality, every little town has their own ability to make or break a wind farm by creating an ordinance, wind power - wind development ordinance that's going to allow a wind farm in or say no.”

Trieste is recognizing the importance of local politics and local governance, and more specifically local zoning laws, to the overall success and outcome of BP's project plans. In what could be interpreted as subtle understatement she concludes:

“So we really need to get our local politics, our public opinion leaders educated on this. What makes sense and what it is that's really to their advantage in their community. And the best way to do this is again through constituents. They're the ones who are going to reelect them.”

Educating politicians in this context could include petitions and lawsuits as well as pamphlets and brochures.

BP's Front Group Voters for Wind: From all indications VFW was created solely for the purpose of implementing BP's agenda. Their efforts included political, public relations and, in all likelihood, measures to chill unwanted public discourse and political speech though legal intimidation.

Trieste's webinar depicts some of the details about the function and activities of Cape Vincent VFW:

“So we usually have folks prepared with t-shirts or hats and that can really stand out in the crowd. So the town board elected officials, whatever, can look out in the audience and they can see oh wow, I've got a lot of supporters out here.”

This reference may have been suggesting those town officials who had lease agreements and were also members of VFW. One of Trieste's prominent outreach tools are petitions. In her words:

“When you have the silent majority that aren't speaking out, you put a petition together and promote your wind project to your town board members as, you know, before they're having, you know, very important critical votes on allowing projects to take place or wind ordinances being developed.”

The advocacy for the use of petitions by Trieste can be seen in the history of actions of VFW; they carried and promoted a number of petitions.

BP's Lease agreements with their binding “cooperation clauses”: The single most common characteristic among VFW members is their wind lease agreements. Wind companies infiltrated (the correct word given the secretive nature of it) Cape Vincent beginning in 2004 signing landowners to wind lease agreements prior to any notification or public awareness of these activities. In particular, developers appeared to target sitting local officials, both elected and appointed. These contracts were complicated legal instruments that many landowners signed without the review and counsel of any personal attorneys.

Aside from the usual language and contractual requirements there is a remarkable clause, particularly for a local elected official, that requires the cooperation and assistance of the land owner to expedite the wind developer’s agenda. Section 8.4 Requirements of Governmental Agencies: Cooperation states that landowners “shall assist and fully cooperate” with BP in securing permits, approvals, environmental impact reviews and essentially anything else required by BP to get local approvals. All of this assistance provided to BP will be “at no out-of-pocket expense to the Owner.” It was an astonishing indifference to basic ethical standards for BP to seek a contractual obligation from local officials to put their company ahead of the people the officials were sworn to serve.

Reading down through Section 8.4 the language is even more compromising regarding general assistance:

“In connection with any applications for such approvals, (Land) Owner agrees at Grantee's (BP) request to support such application (at no out-of-pocket expense to Owner) at any administrative, judicial or legislative level.”

BP's wind lease agreement appears to be a binding contract that requires landowners to assist them in any way BP determines is necessary and that the cost of such assistance shall not be borne by landowners, but will be shouldered by BP alone.

It should need no emphasis to appreciate what BP may have intended in contractually obligating loyalty, i.e., binding leaseholders to assist BP. This requirement to “assist and fully cooperate”, even extending to public officials is shocking.

Voters for Wind's Vice President Munk’s Testimonial: In a testimonial that appeared on the VFW website, [Exhibit 4], Dawn Munk, Vice-President of VFW states:

“With Marion Trieste at our side, this small group (VFW) developed a mission statement, elected officers, developed by-laws, and began the task of reaching out to others.” “We have organized letter writing campaigns and carried petitions and our group now has four committees regarding very specific areas of concentration.” “The staff at GEOS (Trieste affiliate) is with us every step of the way, providing us with information, suggestions and technical and moral support.”

Munk's testimonial demonstrated that Trieste Associates/GEOS were the guiding force for VFW and it further suggests that nothing of any importance would be set in motion by VFW without the advice, consent and full support of Trieste and BP.

Lawsuit against the Town of Lyme: On May 6, 2008 the Town of Lyme adopted a wind law that was judged to be too restrictive to the interests of VFW, Trieste Associates and BP. Then on July 6, 2008 ten plaintiffs, all members of VFW, filed a lawsuit In Jefferson County Court to force the Town of Lyme to rescind their newly adopted wind law.

Public hearing on Lyme's wind law prior to adoption: In the process leading up to the adoption of a wind law by the Town Council, Lyme officials set dates for two public hearings. The first one was scheduled for Saturday January 5, 2008 at the Chaumont fire hall in Lyme. On the night prior to the hearing VFW organized a meeting to prepare and outline their strategy for the public hearing. The meeting was attended by a reporter from the Watertown Daily Times who filed a report in the Saturday edition – the morning before the first public hearing. The article begins:

“About 30 members of Voters for Wind gathered at the fire hall Friday night to organize the opinions they will share at the town public hearing today...” The article goes on to describe VFW activities, e.g., monthly meetings, and their concern for setbacks for wind turbines and limits to turbine noise levels. Marion Trieste attended and was quoted in the Times article as saying,

“The ordinance calls for turbines to be set back 4,500 feet, or more than five-sixths of a mile, from the lake, which, combined with other setbacks, would leave virtually no space in Lyme for turbines. This is the most restrictive ordinance that I've ever seen in the state.”

At the Town of Lyme hearing the following day VFW members parroted Trieste's charge the night before [Exhibit 6]. “The proposed setbacks are three times the setbacks of any other wind project in the state,” said Dawn Munk (Vice President of VFW). Guy Gosier complained:

“This is not legal and none of the town's business. These surveys were passed out with Town Board approval? Why are the people of this town being shoved aside to meet the demands of a certain few people?”

The surveys Gosier was referring to sought the public's attitude toward industrial wind development in the Town of Lyme. Larry Comins then added:

“The town's informal survey was not a legal way of determining results for a yes or no opinion on the wind tower project.”

These three commenters were members of VFW and were also among the ten plaintiffs in a lawsuit that was filed against the Town of Lyme on July 6, 2008.

Lawsuit filed against the Town of Lyme: In a report filed by WWNY TV 7 on July 11, 2008 the news broadcast stated that a lawsuit was filed by ten members of VFW against the Town of Lyme because they adopted a wind law that was “too restrictive and does not adequately allow for the orderly development of wind energy facilities.” The news report further stated, “Members of Voters for Wind say developers can’t work within those constraints.”

In addition the news report stated, “In the lawsuit, Voters for Wind says the board failed to recognize their protest petition. The group says because a petition was presented, the town board needed to have a 75 percent majority vote to pass the zoning ordinance.” The lawsuit therefore complained not only about restrictions on wind development in the newly adopted law, but also on the alleged failure of the Town of Lyme board to properly consider their petition of landowners.

On August 15, 2008 Supreme Court Justice Hugh Gilbert ruled that,” The Lyme Town Council acted "arbitrarily and capriciously" when it rejected 10 property owners' petition protesting the adoption of a local law regulating the siting of wind turbines.” The law adopted on May 6, 2008 was struck not on the basis of the restrictions to industrial wind development, but because of the improper handling of the petition by the Lyme Town Council. While the complaint itself did not describe any affiliation between the ten plaintiffs and VFW, the news reporting frequently mentioned VFW and the lawsuit.

Trieste Associates highlights the lawsuit against the Town of Lyme as an achievement : After reading the WindWise Education Curriculum supported by the New York State Energy Research and Development Authority some may consider Trieste’s statements as confirmation of Trieste/BP's involvement in guiding the legal action in the Town of Lyme. In this Education Curriculum a case study is provided by Trieste Associates. The case study notes:

“Community opposition can delay or prevent the installation of a wind farm. Trieste is hired to educate and engage the community where controversial wind projects are being proposed.” “For example, Trieste Associates has helped citizens organize groups such as Voters for Wind in New York that educates the public about the benefits of renewable energy resources. Voters for Wind filed and won a law suit against the elected officials who voted to prohibit a wind farm in the Town of Lyme, New York.”

Regardless of Trieste/BP's denials about their involvement in the Lyme lawsuit, the content of this NYSERDA sponsored document should be considered carefully.

Article 10 Process – what's said and what's not said: To reiterate, Governor Cuomo's message regarding Article 10 legislation claimed that it would result in a “fair process.” Apparently unfazed by the governor’s words, fairness would not appear to be a top concern to BP. It should be noted here that BP was recently described by the U.S. Environmental Protection Agency as a corporation that “lacks business integrity.”

What BP considers fair undoubtedly was included in their slim and cursory Public Involvement Plan (PIP) that was submitted to the New York State Department of Public Service, as part of their Article 10 pre-application process . Those listed outreach activities included: open houses, the use of local project offices, public education events, local advertisements, project newsletters, informational publications, and attending Town Board meetings.

In Exhibit 2 of their PIP, BP reached back in time outlining the history of the outreach in Cape Vincent during the State Environmental Quality Review (SEQRA) process, again noting the clean, ethical public relations accomplishments. It was those so called “accomplishments” (among others) that were fashioned by the kinds of ethical abuses that led then Attorney General Cuomo to try to hold wind developers in New York to greater public scrutiny. That effort was only marginally successful.

The Article 10 process also provides an online forum for stakeholder input, comments and recommendations regarding various siting projects. At present there are more than 320 comments from the general public, mostly opposing BP's project proposal. Presumably, these comments will be used in some way to gauge public sentiment. The majority of pro-project commentary, however, comes from unidentified BP leaseholders [they do not identify themselves as leaseholders], who are being paid by BP and who are contractually bound to assist and fully cooperate with BP to get their project approved.

A fair public information process should distinguish support and comment from the general public from those being paid by BP to support their project under the guise of general public support. A headline "Paid Advertisement" should be required to accompany any of BP's leaseholder commentary so that state siting officials will know and understand this is the applicant speaking through their front group and contractually obligated leaseholders, and not the general public.

Noticeably absent from BP’s PIP filing was any reference to using lawsuits, although the Lyme lawsuit was highlighted as an achievement by Trieste in the NYSERDA supported WindWise Education Curriculum. BP has no qualms pretending that its relationship to Voters for Wind and Trieste Associates is no more than incidental and inconsequential.

Remarkably, BP feels free to pick and choose on a whim as to what is relevant and when.

Conclusion: Cape Vincent is currently engaged in a fight to protect its future. The threat comes in the form of an enormous industrial wind project that would cover the town from corner to corner, and a project that is wholly incompatible with the town and village's Comprehensive Plan.

Drawn into this struggle is the neighboring Town of Lyme, through which new electric transmission infrastructure would be required. Not only Cape Vincent and Lyme would be affected by the proposed project. There would be significant adverse visual, sound, economic and environmental impacts for miles around in all directions. Several communities that make up much of the famed Thousand Islands Region and the people who live there and visitors alike would share the effects, directly and indirectly.

At risk could be citizens' health and safety, the value of their homes, and the small town atmosphere residents have valued throughout the town's history. The greatest immediate risk, however, is two-fold: Cape Vincent's loss of local control, and the threat posed by British Petroleum, a company whose less than stellar record and reputation on the global stage is being mirrored by its conduct here in New York's North Country.

The loss of local control will only be compounded if the Public Service Commission fails to ensure that the rules governing the Article 10 process are applied fairly, much as Governor Cuomo outlined and promised.

Standing in stark contrast to a fair process, is the corporate history of BP in the U.S. They have pleaded guilty to a number of felonies, lying to Congress being one. In a remarkable precedent BP has also been denied access to Federal leases as, a consequence of their recent actions. The Environmental Protection Agency described BP's corporate behavior best, saying that BP was “lacking business integrity.”

BP's history in Cape Vincent is no better. BP's lease agreements provided a means to pay town officials for their cooperation and in their PIP. BP has acknowledged a direct link to Voters for Wind as well as the thinly buffered relationship through Trieste Associates. It was Voters for Wind that filed complaints to remove perfectly reasonable and prudent local laws and to block public discourse.

BP, incredulously, continues to assert that they have the support of the community for their project. They simply do not. They choose to define the community, for their purposes, as the small minority of town resident and non-resident landowners who have signed lease agreements with them.

And what cannot be overlooked in considering these matters, is that BP never would have gained any developer toehold in the community were it not for the fact that they compromised former town government officials with financial inducements, and by binding those officials to unethical contractual promises. Having tainted the process so thoroughly, BP dismisses their own past actions as if they left no mark on the town at all. The level of mistrust and resentment they have generated by their actions will take generations to heal. And yet, they would presume to go forward with a "fresh" approach to developing their project as if their hands were perfectly clean.

The history of the callous approach taken by BP in this development effort, has come to impress upon many St. Lawrence River area regional and municipal leaders, and opened their eyes fully to BP's abuses. These leaders who are involved in shaping the political, commercial and cultural life of our region, have come to reject BP as a welcome and valuable economic development partner.

Also, there are steadily decreasing numbers of those who reside in Cape Vincent and the surrounding area who may have thought they had a general understanding of the various tensions at work here. There has been a steadily increasing number who understand how BP has worked many angles behind the scenes to manipulate, compromise, and intimidate the common good of the community.

By their past actions in Cape Vincent BP has demonstrated they are unfit to do business in our community. Cape Vincent deserves better treatment.

We are collectively holding our breath, and have been for a long time, for the message to sink in with BP that their development efforts here are unwelcome by the vast majority of residents. They should leave here to allow the town and the region to recover from nine years and counting of astonishingly arrogant corporate abuse. We have had enough of BP's brand of public outreach and it is time for them to stop; it is time for them to go!

Thank you for your consideration of the content

Sincerely,

Kathryn Muschell

Cape Vincent, NY

Sources:

BP's Revised PIP

Wind Powering Webinar

Wind Energy Lease Agreement

VFW Testamonial Letter

WDT ~ Wind Farm Advocates Prepare for Lyme Hearing

Transcript , Lyme Wind Law Hearing

WWN TV 7 Report /VFW Lawsuit against the TOL