On November 28 NYRI requested that the Administrative Law Judges of the Department of Public Service appoint a mediator to seek consensus on various issues (involving the scope and methodology that would be used to analyze visual, threatened /endangered species, routing alternatives and cumulative impacts) and that all parties submit written proposals on these issues no later than 12/20.
On December 4 the DPS Staff requested that NYRI submit its proposals first before the other parties would have to respond.
On December 6 the Department of Environmental Conservation objected to the appointment of a mediator, that "invoking the mediation process now would place an undue burden on State agencies to essentially formulate an application on NYRI's behalf."
On December 7 the City of Utica objected to the appointment of a mediator, calling mediation "most premature when the parties do not have a complete application before them and when they have not had an opportunity for discovery . . . Mediation only makes sense when there are well defined issues that are susceptible to compromise. Here we do not have any single issue that is well defined because of the paucity of information supplied so far by NYRI."
On December 13 Communities Against Regional Interconnect objected to the appointment of a mediator, noting that the topics of NYRI's mediation request overlap the deficiencies in its application and arguing that the parties do not have the legal authority to negotiate away the requirements of the Public Service Law or PSC regulations.
On December 14 NYRI responded to "clarify" its request and propose an extended timetable for response. With regard to the PSC's order that NYRI supply additional information: "Although NYRI cannot, at this time, provide a definitive timetable for providing the supplemental information, NYRI’s current estimate is that it will be able to file the supplemental information in approximately 6 months."
On December 15, the mediator announced her appointment.
This is another troubling sign that state government is abdicating its responsibility to protect the public. (The first sign was the government's apparent lack of interest in who NYRI is). While DEC may be correct that the mediation would burden others to formulate NYRI's application, what really seems to be happening looks worse. NYRI, DPS/PSC and the Administrative Law Judges appear to be looking to mediation as the way to set the standards by which this project will be judged. This presents a big problem for the many who believe that there is nothing to mediate because the project is unacceptable under all present circumstances. These people will avoid mediation.
An example of the limitation of this approach is that the alternative routes to being considered are only those already developed by NYRI or mentioned by other parties. State Government has taken no lead. If State Government had at least required NYRI to research an alternative route that "avoids populated areas to the maximum extent practicable," perhaps the parties might have something to discuss in mediation.
DPS/PSC (and by implication, the State Legislature) have effectively relinquished their role in setting appropriate standards and state policy to private companies and monied interests. Is there any question what the outcome of such a process will be?
In the "lack of news" department, we still are awaiting the outcome of the OD's court action to compel OCIDA to disclose the NYRI-Railroad lease under the Freedon of Information Law. We had expected an answer on this long before now. FOIL is not rocket science.
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12/20/06 Update: It looks like we will hear from Judge Tormey next year. (At least next year is only a few days away!) :-)