Editorial & Opinion

How does the public hold unelected boards, councils, commissions and departments accountable?

Quick answer: We don’t.
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Published on March 11, 2021
By Steve Ahlquist

Many unelected boards, commissions, councils and departments in Rhode Island have extraordinary powers to conduct inquiries, hold hearings, and to issue orders and decisions that have the full force and effect of law. To sit on one of these powerful state institutions, one must be nominated by the Governor and approved by the State Senate via a process called “advice and consent.”

From a political point of view, these unelected boards are a great insulator from the consequences of decisions that unfairly impact the residents of Rhode Island. If you don’t like the decisions made by the Public Utilities Commission to raise energy prices three times during the pandemic for instance, what can you do? The Governor will tell you that once nominated, they have no control over what the “quasi-judicial” agency decides. Your Senator is one of many who rubber stamped the Governor’s nominees and until recently, few nominees were aggressively questioned or challenged by the Senate.

Even as newly elected progressives force conversations about suspect gubernatorial nominees in committee and on the Senate floor, bad actors still get approved. Coastal Resources Management Commission chair Jennifer Cervenka was on her way to easy approval on the Senate floor until the potentially shady agreement to allow the Champlin Marina expansion came to light and John Revens, nominated by Governor Gina Raimondo as she rushed out the door to her cabinet position in Washington, was recently approved to head the PUC on a 30 to 8 vote on the Senate floor.

One advantage of these unelected state agencies for elected officials is that they can take credit for popular decisions, but can blame the agency when the public is disappointed. During the Energy Facility Siting Board (EFSB) hearings to decide the fate of Invenergy‘s $1 billion fracked gas and diesel oil burning power plant aimed at the pristine forests of Burrillville, then Governor Gina Raimondo would often say that building the facility was not her decision. Left unsaid was that she invited the fossil fuel power plant company into Rhode Island, collected political donations from the CEO of the company, promised to do everything in her power to get the power plant built, and that she nominated the board members sitting on the EFSB.

Checking the power of these boards and commissions is an almost impossible task. I was at a Senate Environmental Committee meeting a few years ago when dozens of people voiced their objections to the first re-nomination of Jennifer Cervenka to the Coastal Resources Management Council (CRMC). Ignoring the voices of the people, Cervenka’s reappointment was sent to the Senate floor with one “no” vote. After the committee hearing, I learned that at least one Senator thought that they HAD to vote to approve Cervenka. I ended up explaining that “advice and consent” the official term for the Senate’s role in approving these nominations, meant that consent could also be withheld.

On bright spot: Rhode Island Attorney General Peter Neronha last week threw the power of his office against separate decisions made by the EFSB and the CRMC.

UpriseRI asked the Attorney General if recent court filings made by his office are part of a larger critique of the entire concept of unelected boards with quasi-judicial powers. He was clear that his objections are not that wide.

“Recent court filings reflect this administration’s commitment to taking action to protect the public interest,” said Neronha in a statement I requested so that I could get his point of view exactly right. “It is our job to intervene when we believe proper legal procedures, which were put in place to ensure the public is able to review the process and understand how decisions were made, are not being followed. Going on the offensive when it comes to these matters – and ensuring that businesses and other entities are following the law when making decisions that will impact communities – has been a longstanding goal of mine since taking office and prior to that, when I was US Attorney.

“In addition to our criminal justice work, the Rhode Island Attorney General’s Office has a large civil division that gets involved on behalf of Rhode Islanders in a whole host of areas, including environmental justice, consumer protection, civil rights, and more. I believe that the civil division can and should focus its efforts on acting as the people’s lawyer – standing up for them when their interests are not being served.

“We have been building our capacity by directing the office’s efforts, systems, and resources to be better positioned to do more of this type of work. We’ve established an early track record of success in the environmental protection space and will continue to seek out opportunities to take an affirmative approach in areas that impact Rhode Islanders.”

The Champlin Marina

The Attorney General filed a memorandum in the Rhode Island Supreme Court in opposition to a motion to accept a proposed agreement that would allow for the expansion of a marina in Block Island’s Great Salt Pond. In the papers filed, the Attorney General detailed why a proposed agreement between the CRMC and Champlin’s Realty Associates is invalid and why the Court should not approve the agreement.

The Attorney General filed a petition to intervene in the matter on February 8, 2021. The Rhode Island Supreme Court granted the Attorney General’s motion to intervene on February 12, 2021.

In their filing, the Attorney General maintains that the settlement agreement between the CRMC and Champlin’s was formed outside of the public regulatory process and does not account for the factual findings that formed the basis for the CRMC’s 2011 decision denying Champlin’s application to expand.

The recently developed plan, referred to as a Memorandum of Understanding (MOU), was filed by CRMC and Champlin’s with the Court on January 8, 2021. The Town of New Shoreham and other parties who have been involved in challenging Champlin’s application over the past 17 years were not included in the settlement discussions where the MOU was developed. The MOU was adopted by the CRMC in an executive session, which means it was not open to the public.

India Point Park Power Lines

The Attorney General filed an amicus curiae brief with the Rhode Island Supreme Court in the matter of City of Providence v Rhode Island Energy Facility Siting Board, a case involving the decision by state regulators to place National Grid power lines through India Point Park and along the Providence waterfront.

By filing the amicus brief, the Attorney General is seeking to ensure that the EFSB followed the appropriate legal requirements in its decision to approve the placement of the power lines.

In the brief filed with the Rhode Island Supreme Court, the Attorney General has argued that a 2017 decision made by the EFSB concerning the placement of power lines through India Point Park was not properly evaluated or issued under state law.

Specifically, the Attorney General contends that the 2017 decision by the EFSB did not evaluate the project in light of the criteria set out in Rhode Island’s Energy Facility Siting Act. Under the Act, the EFSB is required to determine whether:

  1. The project meets the needs of the state;
  2. Is cost-justified; and
  3. That it will not cause unacceptable harm to the environment and will enhance the socio-economic fabric of the state.

The EFSB decision does not evaluate the project based on that criteria.

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