By Bruce Mohl, Editor, Commonwealth Magazine
The town of Barnstable is battling against Cape Wind in two federal courts in Washington, but the municipality’s legal tab -- $394,000 and growing – is not being paid by taxpayers. Instead, the legal fees are being picked up by the nonprofit Alliance to Protect Nantucket Sound, the wind farm’s chief opponent.
The financial arrangement between the Alliance and the town of Barnstable has become another flash point in the 12-year feud over Cape Wind, the wind farm proposed for Nantucket Sound. Supporters of the wind farm say the Alliance’s funding is an attempt to mislead the courts and another example of private dollars influencing public policy. But Barnstable officials say the arrangement is a smart move, allowing them to pursue a top legal priority of the municipality in a way that doesn’t burden taxpayers.
The arrangement was set in motion in 2010 when the Barnstable Town Council voted 12-1 to establish a gift fund to which donors could contribute money to support the community’s anti-Cape Wind legal efforts. State law authorizes the creation of gift funds, allowing municipalities to solicit funds from charities, corporations, or individuals for virtually any purpose. At the town council hearings on the fund, officials said there had been discussions with a possible donor but did not publicly identify who the donor was.
Two weeks after the fund was started Barnstable's legal Counsel filed a legal challenge to the FAA
Two weeks after the fund was created, Barnstable’s new outside counsel, Kaplan, Kirsch & Rockwell, filed a legal challenge in Washington to the Federal Aviation Authority’s determination that Cape Wind posed no hazard to flights in the area. It wasn’t until nearly two years later, however, that town officials disclosed in a Cape Cod Times article that the Alliance was paying the Washington law firm’s legal bills.
James Lampke, executive director of the state’s City Solicitors and Town Counsel Association, said more and more municipalities are setting up gift funds to cover legal expenses, typically the cost of expert witnesses. “It’s a growing realization that a community has to be creative to fund the things they decide to pursue,” he said. “I view it as a positive thing.”
But others don’t see it that way. “It’s downright insulting for a town government, which is supposed to represent the entire town, to set up a special fund to accept money from a one-sided opposition group on the most politically divisive issue the Cape has seen in the past decade,” wrote Cape Cod Times columnist Sean Gonsalves in October.
“It looks like, feels like, smells like a special interest influencing public policy.” - Sen. Dan Wolf
State Sen. Dan Wolf, who represents the Cape and Islands and also is the founder and chief executive of Cape Air, said the arrangement disturbs him. “It looks like, feels like, smells like a special interest influencing public policy,” said Wolf, who was one of the founding members of the Alliance but later abandoned the group after researching wind power in Denmark.
A group calling itself Cape Wind Now, made up of such environmental groups as the Conservation Law Foundation, the Sierra Club, and Greenpeace, has also jumped into the fray. The group views the Alliance’s payment of Barnstable legal fees as another example of the way Cape Wind opponents use their influence and money to keep delaying a project that has received all state and federal regulatory approvals.
Sue Reid, vice president and Massachusetts director of the Conservation Law Foundation, said the Alliance-Barnstable arrangement is an example of private dollars influencing, and potentially corrupting, political institutions. She also said the arrangement is an attempt to mislead the courts, making it appear that Barnstable is using scarce tax dollars to pay legal fees when in fact private interests are doing so. She noted the Alliance is already suing the FAA on its own, so the group must feel a separate suit by Barnstable is worth the extra cost.
Asked about Barnstable’s assertion that the fund is legal, Reid said: “Just because something is legal doesn’t mean it’s OK.”
Charles McLaughlin, Barnstable’s assistant town counsel (and a former chairman of the Alliance), said the arrangement with the Alliance is a creative way to pursue a policy that has been supported by four separate town councils over the years. He says environmental groups are attacking the financial arrangement because it has had some success in the courts. (The FAA decision on Cape Wind was overturned by a court in 2011. After the FAA gave its approval again last year, Barnstable appealed that decision.)
“They’re trying to strangle the financial flow on this,” McLaughlin said of the attacks from Cape Wind Now. “It’s an interesting back-door tactic.”
McLaughlin said town residents who oppose the Barnstable Town Council’s policies should take their concerns to the ballot box. “If you don’t like it, vote them out,” he said.
As legal bills come in from Barnstable’s Washington law firm, McLaughlin said he shares them with the Alliance, which then puts money in the town’s special account. McLaughlin said $394,000 has been paid out so far.
Audra Parker, president of the Alliance, said another $40,000 in legal bills is currently awaiting payment. “I see the bills and we pay them as we can,” she said. She estimated the Alliance has spent another $100,000 to $150,000 paying for legal work in connection with another Cape Wind lawsuit brought by a group of 10 plaintiffs that includes the Alliance.
The legal payments on behalf of Barnstable are not listed separately on the Alliance’s tax returns but are instead lumped in with other legal fees, which totaled $857,000 in 2011, the most recent year available. The Alliance answered no on its 2011 tax form when asked whether the filer reported “more than $5,000 of grants and other assistance to governments and organizations in the United States.”
Parker said she has double- and triple-checked to make sure the way the Alliance is reporting the payments to Barnstable is proper. “It’s all legal,” she said.