Monday, August 4, 2014

FIASCO on FONSI: a reprise

Nearly three weeks ago, Other Side issued a Finding of AWOL Stewardship re: Contingent Obligations (FIASCO) against the FONSI granted to NNEPRA regarding MLF construction at Brunswick West.  It was in this post, one of our few in the dog days of summer.

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We’re pleased to say that the Bangor Daily News has just posted a commentary we wrote on the same subject, albeit with a slightly less irreverent tone.  You can find it here:

Since we own the intellectual property, we’re posting the entire column for you:

Contrary to popular belief, construction of Brunswick train depot hasn’t been given the green light

Readers of the BDN know that the Northern New England Passenger Rail Authority, an agency of Maine state government, has been planning to build a 60,000-square-foot maintenance and layover facility for Downeaster train sets in the “Brunswick West” residential neighborhood.

Considerable advocacy has surrounded the proposal, and much opposition has been expressed. Most recently, the Federal Railroad Administration issued a decree called a Finding of No Significant Impact as the purported conclusion of the environmental approval process for constructing such an industrial facility.

Within days of that document’s June 13 release, the rail authority, its lobbyist TrainRiders Northeast, and virtually every print and electronic media outlet in the state hailed the decree as “clearing the way for construction to begin.”

In a buoyant mood, the Northern New England Passenger Rail Authority solicited “community input” on the exterior color scheme for the 650-foot long, 40-foot tall building.

Apparently, neither the principles nor any of the media outlets read the decree, because if they had, they would have reached a far different conclusion. I refer to two very specific passages in the Finding of No Specific Impact.

The first passage, on page 16 of the document, states that the Northern New England Passenger Rail Authority “will be required to comply with all applicable federal, state, and local permitting requirements during the implementation of the Project.”

Then this, found on page 17 of the same document, in the conclusion: “[T]he Project will have no foreseeable significant impact on the quality of the human or natural environment provided it is implemented in accordance with the commitments identified in this [Finding of No Specific Impact]. As the Project sponsor, [Northern New England Passenger Rail Authority] is responsible for ensuring all environmental commitments identified in this [Finding of No Specific Impact] are fully implemented.”

Why are these passages important? They make a crucial point: The Northern New England Passenger Rail Authority is not released to start construction, as has been widely touted and reported. Quite to the contrary, the Finding of No Significant Impact constrains the rail authority, by edict of the Federal Railroad Administration, to address crucial contingencies before proceeding in any physical way. The Finding of No Significant Impact is granted provisionally on condition that all applicable federal, state and municipal permitting requirements are followed.

The Federal Railroad Administration explicitly makes this commitment on behalf of the Northern New England Passenger Rail Authority.

So it seems that the authority’s clearly defined obligation of gaining state and local approval for the construction project has just begun. I am not a lawyer; nonetheless, the unambiguous language in the Finding of No Significant Impact decree leaves little room for discussion. Furthermore, while federal pre-emption has been cited by the rail authority to dismiss the need for such approval, the federal decree tacitly argues against any such consideration.

Where do things currently stand? While the Northern New England Passenger Rail Authority applied for and was granted a stormwater management permit by the state, a recent Superior Court decision vacated that permit. The Finding of No Significant Impact obligates the Northern New England Passenger Rail Authority to apply for a lengthy list of permits. Brunswick’s Zoning Ordinance limits building size to 20,000 square feet in this location, while the Northern New England Passenger Rail Authority’s plans are for a building triple that size. So it looks like the rail authority doesn’t have “local” approval either. Under the circumstances, finalizing the construction schedule and exterior color scheme seem premature.

Should we expect legal action soon, in a Northern New England Passenger Rail Authority attempt to sidestep the “commitment” the Federal Railroad Administration has made on its behalf? Or will we instead see Patricia Quinn, Northern New England Passenger Rail Authority’s executive director, and her “outstanding staff,” as their TrainRiders Northeast lobbyist called them, comply with the decision handed down by their sponsoring federal overseers?

We encourage you, in particular, to read and check back on the comments that flow onto the web page carrying the article.  They provide an interesting glimpse into the varied perspectives and mis-conceptions of the general public, especially as they relate to understanding economics and economic development.

Frankly, some of the commentary leaves us aghast, but then we should be use to such thinking.  We’ve lived in Cape Brunswick, the richest little town in America, long enough to have learned that we don’t see things the way others do.


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