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Gibson clearing up "myths" about adjudicatory hearing
October 24, 2011 - Jessica Collier
Dave Gibson of Adirondack Wild has a blog post today about the ACR hearing on the Adirondack Almanack.
He lists a few impressions he had of the hearing, plus what he calls a few myths and the truth behind the myths.
In his impressions, he praises Judge O'Connell for being fair and impartial, a sentiment many of the parties shared with me when the hearing sessions ended in June. He also criticizes APA staff, saying they "appeared overly eager to condition a defective application and bend to the project sponsor’s aspirations."
In his myth 1, he argues that the APA isn't meant to equally balance environmental issues with economic ones, but rather to protect environmental concerns while taking into account potential economic benefits. It seems to me that he's somewhat arguing semantics here. Looking at the pages-long list of conditions APA staff want to attach to a permit if one is approved, it would be tough to say that the APA ever puts economic interests ahead of environmental ones, or even on equal footing. As APA staff said in their closing brief, there will be impact from any sort of development at all, it's their job to mitigate the impact.
Gibson's myth 2 was something that bothered me a lot during the hearing. Ulasewicz did often try to use the fact that the application was deemed complete as proof that there was enough information in it, when staff made it very clear, in testimony and in documents referred to in the hearing, that they didn't think there was enough information provided by the application. In fact, that's the entire reason the project went to a hearing in the first place.
Myth 3 refers to burden of proof in the hearing. I'm not a lawyer, but from everything I've heard, it sounds like he's correct here, too. Every law I've heard cited here makes it clear that the burden on proof is on Preserve Associates to prove that the assertions they make in the application are true. I'll leave it to Gibson to argue how well they proved their case.
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