(Editor’s note: Jon Margolis is VTDigger’s political columnist.)
[I]n early August, a federal judge ruled that the Public Service Board’s decision to ban the public from a hearing “cannot be sustained under the First Amendment.”
The board complied.
Sort of.
Told that it must allow “public attendance” at its Aug. 4 hearing about extension of a gas pipeline through a park in Hinesburg, the PSB decided to allow six members of the public into the hearing room.
“It turned out to be eight,” said Lisa Barrett, the retired lawyer who was the plaintiff in the lawsuit filed after the board first said it would permit no one (later amended to allow reporters) to enter the hearing room in Berlin, a “training room” of the Agency of Natural Resources that has space for about 70 spectators.
The PSB, Barrett said, “complied with the letter of the court order.”
Now, to be fair to the Public Service Board, it should be noted that some of its antagonists appear equally indifferent to the First Amendment. Members of a group called Rising Tide Vermont have attended earlier hearings neither to listen nor to speak but to shout, thereby depriving others of the right to listen or to speak.
As U.S. District Judge Christina Reiss noted in her ruling, “There is, of course, no First Amendment right to disrupt adjudicatory proceedings. … To the extent disruptive participants make it difficult to see or hear the board’s proceedings, they may impair the First Amendment rights of other members of the public.”
The First Amendment exists primarily to limit the power of the government. Rising Tide is not the government and so may not, strictly speaking, be bound by those limits.
Then again, perhaps private individuals should follow the spirit of the Constitution even if not bound by its letter. John Franco, the lawyer who argued the case in court on Barrett’s behalf, said, “People have a First Amendment right to go to hearings, to speak and to listen. Interfering with (that) right is a very, very bad thing to start doing.”
Rising Tide does not see it that way.
“This is frankly an unjust process,” said Will Bennington, the Rising Tide spokesman. Bennington denied that the protesters had shouted; they were singing. But he did not deny that the aim was to “prevent (the process) from going forward.” In the view of Rising Tide, Bennington said, pipeline owner Vermont Gas Systems is “stealing from 80-something-year-old widows. We have no intention of letting them make their argument.”
Hmm. Let’s parse this for a minute. A small, un-elected band of devoted — arguably zealous — people has arrogated to itself the power to interrupt if not to halt the legal proceedings of a state agency operating according to laws passed by the elected representatives of the people.
The difference between this zealotry and fascism is … just what?
Especially because there is no evidence that the zealots speak for a majority. No one has taken a poll, but state legislators tend to know what their constituents think (otherwise they don’t stay in office), and two who represent the area to be served by the pipeline, Sen. Chris Bray, D-Addison, and Rep. Harvey Smith, R-New Haven, report that most of their constituents seem to have accepted the PSB’s earlier decision that the pipeline is in the public good.
“It hasn’t been a hot topic,” Smith said.
Bray, citing cost overruns and apparent inconsistency with state’s renewable energy goals, has his own reservations about the wisdom of the project. But while he noted that a vocal minority in his district opposes the pipeline, “in general, most people accept it as reasonable.”
As long as fairness is in the air, let’s show a little toward the pipeline opponents, too. The Public Service Board, while it operates within the law and its proceedings are available online, is perhaps the most aggravating, imperious and haughty agency in all of state government.
This does not mean the three commissioners and their 24-person staff are imperious and haughty people. They may or may not be. It’s the law that makes the board — a quasi-judicial body — all but impervious to public sentiment. Its job is to determine whether a proposed project is in “the public good.” With precious few exceptions, it decides that it is.
Just the other day, for instance, it ruled that a proposed solar project in Morgan met that “public good” test. The residents of Morgan were almost to a person opposed to the project. That didn’t matter. Perhaps it shouldn’t. The PSB’s decision may have been the right one. But it’s easy to see why many rank-and-file folks don’t like it.
They dislike it even more because, as in the case of the gas line, utilities whose projects get PSB approval often resort to eminent domain, seizing (and paying for) property — or the limited use of property, through easements — whose owners do not want to sell it.
The board itself has no power of eminent domain. The utilities do. The law gives it to them. But it’s all part of the same process, and not everyone makes the distinction. Eminent domain is often necessary. The constitutions of both the United States (Fifth Amendment) and Vermont (Chapter 1, Article 2) specifically authorize it. But it is a sweeping exercise of government power, often maddening to the affected property owners and their friends and neighbors.
To some extent, then, the board and its staff are not responsible for their bad rep. But some of their actions exacerbate it. Just consider its original order to close that hearing:
“Access to the hearing site will be controlled by law enforcement officials, who will only permit the entry of the parties, their counsel, their witnesses, the board members, board staff, and the court reporter. All persons who attend … will be required to present a form of valid photo identification (e.g., a driver’s license, a passport, a government employee badge) in order to enter the hearing site.”
And no one on the PSB staff thought to say something like, “Uh, boss, won’t somebody point out that this sounds like the directive of an agency of a police state?”
Not if an agency doesn’t care what anybody thinks.
Furthermore, as Judge Reiss’ decision points out, the PSB did not bother to take other steps to deal with its (legitimate) concern about protesters disrupting the hearing. It didn’t even bother to ask the disrupters to stop disrupting, or, failing that, to leave the hearing room. It could have arranged with law enforcement to have the disrupters ejected.
It did not. Instead, it just ordered the meeting closed. Two of the three board members, including Chairman James Volz, are lawyers. So are at least six members of its staff. It boggles the mind to suppose that not one of them knew their order could not stand.
Asked whether that had been discussed, PSB chief counsel June Tierney, generally cooperative and accommodating in an interview, declined to answer.
Perhaps the Public Service Board and Rising Tide Vermont deserve each other.
