Getting To Know Judge Agresta And The Art. X Stipulation Phase He Mentioned The Other Night

Since Judge Agresta's comments at the intervenor fund meeting I thought we really should review and understand his duties, and the Art. X stipulation process he refers to.  I posted information on the examiner and the stipulation process before but it suddenly seems more relevant nowafter his statements.
A while ago K at Pandora's blog raised the question as to what BP would do next after they received comments on their PSS.  She outlined three choices she thought BP had, but skipped the important stipulation process and I filled in another choice...the stipulation phase.  A stipulation is basically an agreement between the parties such as BP and the town on environmental studies to be conducted, or even negotiations and agreements on aspects of our law and the BP project size.   So far BP wants it's project as is, and the Town wants it's laws complied with 100%. 

However, it appears Judge Agresta sees this a little differently suggesting the "parties" work out stpulations (agreements) and those agreements may not be 100% what the Town wants in its law.  After all part of his job is to mediate.

Below are quotes directly from the Art. X regulations regarding the presiding examiner (Agresta) and the A-10 stipulation procedure . After you read this then once again consider what Judge Agresta suggested to BP and the Town as "parties".  They  are the "parties" he refers to.

(h) Upon the filing of a preliminary scoping statement, DPS shall designate a presiding examiner. DPS may also designate additional hearing examiners to assist the presiding examiner in all duties of the presiding examiner.


(i) The presiding examiner shall, among other duties, mediate any issue(s) relating to any aspect of the preliminary scoping statement and the methodology or scope of any study or program of studies concerning which agreement has not been reached and receive any stipulation setting forth any agreement that is reached.

(j) After the presiding examiner has determined that funds to assure early and effective public involvement have been allocated to municipal and local parties, the applicant may commence stipulations consultations and seek agreement by stipulation with any interested person, agency or municipality including, but not limited to, the staff of DPS, DEC, and DOH, as appropriate, as to any aspect of the preliminary scoping statement and the methodology or scope of any study or program of studies made or to be made to support the application. Before any such stipulation is finalized:

(1) a copy of the proposed stipulation shall be served by the applicant on the presiding examiner and on the persons who participated in the stipulations consultation process, and shall be filed and served by the applicant in the same manner as it files and serves the preliminary scoping statement pursuant to Subdivision (c) of this section.

Now here is what Mr. Agresta suggested the "parties" do in the stipulation process!  He is not just saying BP alone should provide an alternative, he is suggesting the parties enter into a stipulations (agreements) on our zoning, and maybe not even one 100% in compliance with our zoning!

Agresta's comments from the WDT.

Mr. Agresta also said he would be “very interested in parties working out some stipulations on alternatives,” such as alternative sizes for the project, and a case scenario that attempts to comply with the town’s zoning law — not necessarily by 100 percent but to “the degree possible.”

So the obvious question is... will the Town enter into negotiations with BP to reach a stipulation on the project size and as a result our law?  I'm not saying they will or won't, but it will be interesting to see what they do about Agresta's suggestion.

But keep this in mind in the Town's own words below on an intervenor  funding request for attorney Paul Curtin.  He was the attorney hired by the Town to represent the Town in the Art. X process and deeply invloved in the formulation of our new comp plan and zoning law.

Mr. Curtin represents the Town of Cape Vincent in the current Article 10 proceeding. To date his

cost to the Town has been underwritten by local taxpayers. During the stipulation phase when

the Town and applicant are negotiating what to include in the final scoping document and what is to be considered for examination and study in the formal application, Mr. Curtin will attend all of  these formal meetings and negotiations. The funding request is to cover any preparation costs
for the stipulation phase and any legal costs associated with attending, participating and
representing the Town.

Now as I said I am not sure if the Town would enter into the stipulation phase of Art. X with BP, nor am I saying they will negotiate and come to any agreement with BP over our zoning law that is not 100% in compliance.

But it does appear the town has thought ahead and will participte in the stipulation phase according to their coments above in the intervenor application. 

And now Judge Agresta, a powerful man in the process,  has just given them "suggestions" as  to what he would like to see negotiated...and that appears to be a stipulation (agreement) on a project alternative that is not neccessarily 100% in compliance with the Town's wind siting regulations. Hhhmmmm!!!

Oh yes ... and like I said in another post, Mr. Agresta  as presiding examiner, and his associate examiner can make conclusions and make recommendations to the final Art. X board and their decision.

Makes me wonder if Agresta's "suggestions" that the "parties" work out "stipulations" (agreements)  on a project alternative that may not be 100% in line with the Town zoning is a foreshadowing of the final Art. X decision?

Or basically a compromise!!!

The next post will explore HOW and WHERE the stipulation phase takes place.

Stay tuned!