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January 09, 2011

The Tyranny of “No” – A Small Example

Whether the goal is to deploy rural broadband, build a factory, a bridge, or a railroad, environmental law and regulation has become twisted to allow a small minority of opponents to block projects by imposing unreasonable and unpredictable cost and delay. It's not a question of growth vs. the environment – although it's often framed this way. Projects which are blocked or delayed – like broadband for telecommuting or a better electrical grid – often would improve the environment if they ever got done. A sound economy is a prerequisite for public and private spending on the environment. The tyranny of "no" needs to become a quick way to a responsible "yes".

Property owners find that they can use lawsuits and environmental regulation to give them authority over their neighbors' properties without the expense of actually having to buy the property they want to control. They often find willing allies in anti-growth groups which cloak themselves in an environmental label. The results of these actions may be harmful to the community as a whole; they are certainly harmful to the owners of the adjoining property; and in some cases they are also bad for the environment.

Below from a story in the Rutland Herald of September 18, 2010 (subscription required):

A Wells family has gone to court to fight a corporation that wants to build a wireless communications network on a tower 60 feet from their home. Sergei Kniazev and Olga Julinska bought the 10-acre property … in 2007 in hopes of living and working there; raising their two young boys and creating an art studio and school atop Northeast Mountain.

The couple, Russian immigrants who run a widely publicized art company, now say their lives are in jeopardy because of Vermont Transco LLC and partner Vermont Electric Power Supply Inc., or VELCO….

"We are doing the lawsuit to protect our family from radiation;" Julinska said. "It's clear that this is just the tip of the iceberg ... broadband, Smart Grid, everything is going to be put up on this tower."

The couple purchased the property with an existing low-frequency radio tower and easement on it.

Note that the easement was a condition of their purchase of the property and there already was an operating tower there. They tried to buy out the easement to get rid of the tower; there's absolutely nothing wrong with that. But they didn't want to or couldn't pay the asking price; so they're using the regulatory process and courts to try to stop the owner of the easement from selling it to VELCO, who understandably won't buy it unless they can use it.

VELCO is a transmission utility jointly owned by all Vermont's retail electric companies. On behalf of these companies, it is building a statewide radio network for emergency use in power outages. Hopefully these towers WILL be used for cell service and broadband, but that's not why they're being built. Radiation from these towers is below the federal standard, according to VELCO, and , according to the Telecommunications Act of 1996, "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions." In other words the feds have set a single national standard for allowable radio emissions and prohibited that standard from being reset in each or any local jurisdiction. As much as I like acting locally, I don't think that local planning commissions can or should try to determine what the proper standard for radio wave energy is.

That federal preemption, however, did not stop the couple from using the claim that the federally permitted signal strength is dangerous in taking their case to the local planning commission (which did not make any recommendation to the Public Service Board) and to the public and from going to court to stop the project. They've been joined in their efforts by a group called Vermonters by A Clean Environment (VCE), which is also opposed to nuclear energy, wind turbines, and takes credit for blocking a billion dollar natural gas project in southwestern Vermont in 1999. Good thing they saved us from having that low carbon, low cost fuel; it might even have led to economic development in Bennington County.

For as long as the project is delayed, emergency service restorations in that area of the state will be handicapped by poor communication. Other residents will lack the opportunity to get cellphone or broadband coverage. But the couple and VCE are not liable for any of the damage they are causing their neighbors for the delay they are imposing. They are not liable – even if they lose their case –for the costs VELCO and the ratepayers (that's us) will incur in refuting and fighting their objections although their most serious allegation – potential damage from radio waves – is precluded by federal law from being the basis of local action.

In Vermont we're not going to get the broadband, energy, and industrial development we need for a vibrant economy unless we both simplify the permitting process and protect it from being gamed at minimal cost and no risk by alliances between those who want to control property they don't own and those who are simply opposed to growth. We can simplify by using a process called "permit by rule" for small projects like the one in this example. If you follow a specified set of rules, you just need to register your compliance and don't go through the permit process. If you don't comply, you pay a substantial penalty. We can discourage frivolous delay both by setting a strict schedule for permitting – which can result in denial, of course – and by forcing those who seek delay beyond the specified period to post bond for the cost of that delay. The bond would be forfeit unless their objection is sustained.

Nationally no substantial infrastructure projects have yet been done with money from the Stimulus Bill of 2009. It didn't have to be that way even though big projects are even harder to do than little ones like the one in this example. It's never easy to do a big project fast; engineering takes time. Nevertheless, if it were possible to get the permits to build infrastructure in a reasonable amount of time – which means having a quick way to dispose of spurious objections and a strict timeline for approval and disapproval, we would have a construction boom which would substantially reduce unemployment without the government having to finance it; and we'd be able to do government projects at much lower cost and when they're needed. There are many times in our history when we have been able to move quickly; moving quickly can be part of our future if we break the tyranny of "no".

Related posts:

Blocking the Sun and the Wind

Removing Obstacles to Obama's Job Growth Plan

Confessions of a Stimulator

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