Documents
PRESS RELEASE
To: MEDIA
From: Greg L. Zempel, Kittitas County Prosecutor
Re: NEWLY DISCOVERED EVIDENCE OF BIAS AND PRE-JUDGMENT
BY ENERGY FACILITY SITE EVALUATION COUNCIL
Contact: Neil Caulkins, Deputy Prosecutor, (509) 962-7520
Date: December 5, 2007
Kittitas County made a public records request to the Energy Facility Site Evaluation Council (EFSEC) regarding documents created during EFSEC’s consideration of the Kittitas Valley Wind Power Project. Those disclosures, which have taken over six months so far to be made, are startling and undermine basic tenants of how we all believe government should operate. Those basic tenants, apparently not held by EFSEC, are as follows:
Tennant number one-public process should be meaningful. It is a very basic notion that we have a government “of the people,” and that those in government are public servants. Following from this is the idea that, when decisions are made about how land is to be used, the opinions of those who own the land and live near it matter and are sought. Not only are those opinions valued and sought, but they must actually be considered by the government because they really have merit and bearing upon the decision the government is making. Seriously considering public input as part of the public process is a vital way in which government action is “of the people.”
This is apparently not a belief held by EFSEC. In a December 4, 2006 email from Jim Luce, EFSEC Chairman, to an EFSEC council member about the Kittitas Valley project, Mr. Luce wrote “What this case is not about…local input.” For EFSEC, it appears that the entire public process was a meaningless charade to which it paid no attention. For those from this County who took time from their lives to participate in that process by drafting letters or coming to public hearings and speaking before EFSEC, it is an appalling disappointment that none of that effort was valued or considered and that nothing shared made any difference.
Tennant number two-EFSEC makes decisions based on what is best for the energy needs of the people of Washington. The statement of intent by the Legislature explicitly says that this is why EFSEC was created in the 1970’s. Because government is “of the people” it must always be seeking what is best for the people and the state in matters related to its area of expertise, energy in this case, is it not?
This is not a belief that drove the EFSEC decision in the Kittitas Valley project. In a November 28, 2006 email attachment, Mr. Luce, said “if we don’t preempt we are effectively out of business as a “State siting Council” and should turn siting power projects totally over to local jurisdictions…Shame on us for not forcing this issue earlier.” As far back as 2004, Mr. Luce stated that, if EFSEC did not recommend preemption in the Kittitas Valley project, “EFSEC will lose credibility.” EFSEC was motivated, not by what was best for the energy needs of the people of Washington, much less Kittitas County, but rather the self-interested survival of this governmental agency and its power. The specific facts of the case, what the project would do to the environment or the people of this County, or the energy needs of our state were all pushed aside and dominated by a selfish interest in maintaining position and power.
This twisted need for self-preservation went as far as fearing Legislative meddling. In an email from February 24, 2004, Mr. Luce wrote that “if County disagrees and litigates, then legislature may choose to amend the statute.” The picture that emerges is of a misguided bureaucracy that is determined to protect its existence and power at all costs. The last thing it wanted was to be “of the people.”
Tennant number three-matters are decided by an unbiased judge. It is another basic notion in our society that each party has the responsibility of putting their “best foot forward” for their case, and that an impartial judge decides which side has the most just position. Indeed, one of the pillars of our society is an independent judiciary.
This belief appears to be in short supply at EFSEC. In an email dated February 24, 2004, which was over two years before the County would ever present its case to EFSEC, Mr. Luce wrote that he considers the position of the County “very unpersuasive.” Similarly, a land owner, who stood to benefit financially should this project be approved, remained on the deciding panel, despite numerous challenges, was allowed to participate in deliberating those challenges, and even was allowed to help write the order denying those challenges. This sort of self interest and pre-judging indicate that those making the decision were anything but unbiased.
These sad revelations show how irreparably marred the EFSEC process was that took so much of everyone’s energy and caused no small amount of controversy within our community. We have all been deprived of any sense of fairness about the affair. The Governor approved the recommendation for preemption, probably unaware of the serious flaws in EFSEC’s process and motivations. Currently, in a court in Olympia, EFSEC has moved that this case be sent immediately to the Supreme before it finishes disclosing all the documents the County has requested and before those that the County has received, including those quoted here, can be added to the record. This desire on the part of EFSEC to get the Supreme Court to decide the issue without all the facts is appalling, but given what has gone on so far, not surprising.
Board of County Commissioners Chairman Alan Crankovich said “I have deep concern and disbelief resulting from information discovered in Kittitas County’s Public Disclosure request from EFSEC. It appears the EFSEC decision to recommend preemption of the Kittitas Valley Wind Power Project was an act of self preservation for the Council rather than a thorough evaluation of the project itself. EFSEC Chairman Jim Luce is quoted from an email stating “if we don’t preempt we are effectively out of business as a “State Siting Council” and should turn siting power projects totally over to local jurisdictions…Shame on us for not forcing this issue earlier.” That clearly demonstrates that the local and EFSEC public processes were merely acts of “going through the motions” and that Chairman Luce had already made his determination. This seriously questions the credibility of the appointed Energy Facility Site Evaluation Council. In my mind, this demonstrates total disregard for any public process and may damage beyond repair any level of public trust towards EFSEC. An injustice has been done to all.”
County commissioner David Bowen said "I place my trust in the democratic process on a daily basis. To find the EFSEC decision was predetermined and systematically manipulated by Chairman Jim Luce since February 2004 is an inexcusable abuse of his appointed position in state government.” Bowen went on to say "Unfortunately, through his actions, Mr. Luce has irreparably damaged the credibility of EFSEC in evaluating sites for alternative energy facilities, a true injustice for all involved."
County commissioner Mark McClain said “Our community, the applicant, and the tenants of fair and impartial review have been hijacked by EFSEC, Mr. Luce in particular, and the Governor’s Office, by prejudging the application. Our Prosecutor’s Office has uncovered documents which demonstrate Mr. Luce’s aim: ‘if we don’t preempt [the local land use decision] we are effectively out of business.’ This is unfair to all involved and casts serious doubt about this process, those involved and the Governor’s decision to appoint Mr. Luce, not to mention his fitness to serve our community.”
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