Homework for March 12, 2014: Instructions for Your Review of the DEIR and Supporting Documents

Each of you has been assigned a topic on which you will write a comment letter and present oral comments at a public hearing (in class on March 27). To develop your comments, you will review and rely on the DEIR and selected supporting documents. I have significantly redacted the actual document (Draft EIS for Cape Wind’s proposed off shore wind farm) in an effort to make the task more manageable for you but still meaningful. Although I have reduced it by many hundreds of pages, it is still several hundred pages long. Please know that in “real” life, you would be reading many hundreds, if not thousands, of pages of material to engage in the discussion we will be having and to prepare comments. Please read the rest of this memorandum BEFORE you read the DEIS! The purposes of the upcoming exercise are several: (1) To give you some experience reading typical technical documents. Yes, they are often dense and turgid. Be glad I am not giving you the raw, first draft to edit! You’ll do lots of that in practice. (2) To force you to practice reading such documents “efficiently.” This means you need to think about what you are looking for in the document before you spend a lot of time wrestling with it. This means (building on our prior classes) start with the Table of Contents. Watch out because the information you need for your task/purpose will not necessarily be presented where you expect to find it! Remember the Clean Air Act? Figure out how the author(s) organized the material. Sometimes it turns out to be useful to thumb through the entire document. That doesn’t mean you are closely reading every page if the task doesn’t call for it. (3) To give you some practice using this type of document to support your position. There is material in the document that is helpful to those who support the project; there is material that is helpful for those who oppose the project. Your job as the lawyer is to challenge the experts’ assumptions and conclusions. That should be your focus whether you are editing or reading documents, whether you are writing comments or preparing to examine a witness, whether the author is on your team or on the other side. (4) To practice using the law as the backdrop for a factual argument. I will give you instructions next week in class about how to write a comment letter and how to present comments at a hearing. Both are very different from brief-writing and judicial testimony, but the law still plays a pivotal role. You will be using the DEIS to develop (and then present at our mock hearing) both written and oral comments from the perspective and on the issue I will assign you. It was not practical for me to edit every page of the DEIS to match our GustPower hypothetical, so I am asking you to accept that all references to Cape Wind in the DEIS are really to Gust Power and where you have any question about the facts, please refer to the Gust Power fact sheet. By noon on Wednesday, March 12, you should each post on the i-site between 4 and 6 questions that you have about the DEIS. Please bring to class on March 13 a preliminary outline of your written comments. We will discuss the art of writing comments during class. You may submit your written comment letter anytime before April 3. The letter should be no more than 12 double-spaced pages supported by statutory and regulatory citations, the DEIS, and any other technical documents you been provided. You will work as individuals, not as teams. The assignments are as follows: 1. Representing GustPower on the issue of impact to birds and bats = Sarah. Please focus specifically on piping plovers, roseate terns, red knot shore birds, and bats. 2. Representing GustPower on the issue of impact to marine mammals = Ryan. 3. Representing GustPower on the issue of impacts to fishing = Mateen. 4. Representing a group of year-round residents of the town that will host the transmission cable who support the project = Andrew. 5. Representing Gust Power with regard to the analyses of alternatives in DEIR generally and impacts of the project on whale watchers specifically = David. 6. Representing a group of Cape Cod recreational and commercial fishermen who oppose the project = Casey. 7. Representing a group of summer residents of the town that will host the transmission cable who oppose the project = Sean. 8. Representing a group of people who own property on Cape Cod who oppose = Rachel. 9. Representing a group of whale watchers who oppose the project and whose comments focus on the alternatives analyses in the DEIR = Corey 10. Representing a group of bird watchers who oppose = Daniel. Please focus specifically on piping plovers, roseate terns and red knot shore birds. Read the DEIS and supporting documents from the perspective you’ve been assigned. You do not need to do any independent research or read sections of the DEIS that I did not include. I reserve the right to give you additional material if I think you need it to prepare a good set of comments. You should certainly let me know if you think you need additional material to support your assigned position. Think about what result you want from the public hearing/comment submittal process. As always, let me know if you have any questions. The DEIS and supporting documents will be located on [SELECT LOCATION]