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Archive for the ‘Legal Issues’ Category

May 11, 2016 from the New York Times

Speaking to The Times in 2002, Mr. Ratner said: “A permanent war abroad means permanent anger against the United States by those countries and people that will be devastated by U.S. military actions. Hate will increase, not lessen; and the terrible consequences of that hate will be used, in turn, as justification for more restrictions on civil liberties in the United States.”

MichaelRatnerMichael Ratner, a fearless civil liberties lawyer who successfully challenged the United States government’s detention of terrorism suspects at Guantánamo Bay without judicial review, died on Wednesday in Manhattan. He was 72.

The cause was complications of cancer, said his brother, Bruce, a developer and an owner of the Brooklyn Nets.

As head of the Center for Constitutional Rights, Michael Ratner oversaw litigation that, in effect, voided New York City’s wholesale stop-and-frisk policing tactic. The center also accused the federal government of complicity in the kidnapping and torture of terrorism suspects and argued against the constitutionality of warrantless surveillance by the National Security Agency, the waging of war in Iraq without the consent of Congress, the encouragement of right-wing rebels in Nicaragua and the torture at the Abu Ghraib prison during the Iraq war.

“Under his leadership, the center grew from a small but scrappy civil rights organization into one of the leading human rights organizations in the world,” David Cole, a former colleague at the center and a professor at Georgetown Law School, said in an interview this week. “He sued some of the most powerful people in the world on behalf of some of the least powerful.”

Mr. Ratner, who majored in medieval English at Brandeis University in the 1960s, was radicalized by the teachings of the New Left philosopher Herbert Marcuse and the preachings of a classmate, Angela Davis. He moved further to the left as a law student at Columbia University when he witnessed police brutality after students seized campus buildings in 1968. He defied legal odds and even occasional death threats to defend lost causes, gambling that even a verdict against his clients could galvanize public opinion in his favor.

“He was part of a generation of lawyers that was absolutely bold and that understood the political aspects of law,” his former wife, Margaret Ratner Kunstler, a civil rights lawyer, said this week, “and that was not afraid of bringing a lawsuit that was going to lose if it was going to support the community.”

Professor Cole predicted that Mr. Ratner would be best remembered for filing the first lawsuit on behalf of Guantánamo detainees in a case that eventually affirmed their right to judicial review.

“This was a case that was regarding a fundamental principle, going back to the Magna Carta in 1215, about the right to have some kind of a hearing before you get tossed in jail,” Mr. Ratner told Mother Jones magazine in 2005.

In 2008, the Supreme Court ruled 5 to 4 that prisoners at Guantánamo, where the court said the American government exercised de facto sovereignty, had a constitutional right to habeas corpus, which they had been denied under the Military Commissions Act.

Professor Cole said Mr. Ratner’s tenacious advocacy not only gave the detainees the right to their day in court, but also culminated in “the first Supreme Court decision in history to rule against a president in wartime regarding his treatment of enemy fighters.”

While Guantánamo still has not been closed, as President Obama had promised, hundreds of detainees have been released.

“When I asked him, several years later, what he thought his chances were in filing that suit,” Professor Cole recalled, “he answered: ‘None whatsoever. We filed 100 percent on principle.’ That could be his epitaph.”

Michael David Ratner was born in Cleveland on June 13, 1943. His father, Harry, was a Jewish immigrant from Russia who ran a building supply company. His mother, the former Anne Spott, was a secretary and helped resettle refugees after World War II, during which scores of the couple’s relatives were killed in the Holocaust.

In addition to his brother, he is survived by his wife, Karen Ranucci, a video producer; his children, Jake and Ana; and his sister, Ellen, a Fox News analyst and radio news correspondent.

Michael Ratner’s college radicalism had deep personal roots. His father once gave shoes to a homeless man who came to the door seeking a handout. His mother refused to enter a Florida airport because it was racially segregated.

Mr. Ratner recalled in an interview with The New York Times in 2002 that as a boy he had dreamed of becoming an archaeologist, adding: “I used to think it wasn’t political, but it turns out to be highly political. After all, what layer of civilization do you save?”

After graduating in 1966 from Brandeis, where he met Professor Marcuse and Ms. Davis, he earned a degree from Columbia Law School (after taking a year off to work for the NAACP Legal Defense and Educational Fund on a Baltimore school desegregation case). He then clerked in Manhattan for Judge Constance Baker Motley, the first black woman to serve on the federal bench.

In 1971, he joined the Center for Constitutional Rights, a nonprofit organization with headquarters in Manhattan, which litigates civil and human rights cases and was co-founded in 1966 by William Kunstler, whom Mr. Ratner’s first wife later married.

Mr. Ratner’s first case with the center involved a suit on behalf of inmates killed and injured at the Attica Correctional Facility in upstate New York after a bloody uprising there in 1971, although the court ruled that it could not compel prosecutors to indict prison guards or the state troopers for their actions.

He was the center’s legal director from 1984 to 1990 and its president from 2002 to 2014. He was also president of the National Lawyers Guild and of the European Center for Constitutional and Human Rights, and founded Palestine Legal, which defends protesters on behalf of Palestinian rights.

Mr. Ratner defended Julian Assange and WikiLeaks for disseminating millions of secret American government documents; served as a counsel to Jean-Bertrand Aristide, the Haitian president, in the prosecution of war crimes; and advocated on behalf of Haitian refugees held at Guantánamo after the 1991 coup that overthrew Aristide, the country’s first democratically elected president.

He is the author of “The Trial of Donald Rumsfeld: A Prosecution by Book, Against War With Iraq” (2008) and “Guantánamo: What the World Should Know” (2004).

“He felt very much that torture doesn’t make us safer, and that everyone needs a defense,” Ms. Ranucci said.

Speaking to The Times in 2002, Mr. Ratner said: “A permanent war abroad means permanent anger against the United States by those countries and people that will be devastated by U.S. military actions. Hate will increase, not lessen; and the terrible consequences of that hate will be used, in turn, as justification for more restrictions on civil liberties in the United States.”

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Marine Science Today, November 23, 2009

Image by Larry R. Wagner

The National Marine Fisheries Service, the agency charged with the stewardship of the U.S.’s living marine resources, may be sued for failure to implement the 1998 Blue whale Recovery Plan. Friends of the Earth, Pacific Environment and the Center of Biological Diversity have joined the notice of intent to sue submitted by the Environmental Defense Center last week.

Among other actions, the recovery plan mandates that the Fisheries Service identify and implement methods to eliminate or reduce blue whale mortalities from ship strikes. According to the groups, the agency has failed to carry out key provisions of the plan intended to both minimize and eliminate threats caused by ship strikes, pollution, and other harmful activities, as well as to improve the agency’s limited knowledge concerning blue whale populations and habitat needs.

Brian Segee, staff attorney with the Environmental Defense Center said:

“Recovery plans serve as the primary ‘road map’ of actions necessary to both protect and recover our nation’s most imperiled wildlife species .  The blue whale deaths in October again demonstrate that it is long past time for the Fisheries Service to carry out the Blue Whale Recovery Plan’s mandate to implement measures that will eliminate or minimize ship strikes.”

Driven to the brink of extinction by whaling in the mid-20th century, blue whale populations have begun to slowly increase in many areas, and the species is now sighted during the summer along many areas of the California coast.  While these increased sightings are cause for optimism, blue whale population numbers remain at a small fraction of their historic levels — today’s global population is estimated to be 10,000 animals, compared to a population of at least 350,000 before whaling.  In addition, the species is now confronted with a host of new and emerging threats, including not only ship strikes but climate change, ocean acidification, and noise pollution.

Blue whales are the largest animal to have ever lived on Earth.  The average adult blue whale is almost as long as a Boeing 737.  They live more than 50 years for certain and could live as long as 90-100 years.  They live in all oceans and migrate, travelling thousands of miles each year.  It is known that the Santa Barbara Channel hosts the largest seasonal population of blue whales.

The Potential Biological Removal (PBR) level for blue whales under the MMPA is 1.4.  The PBR is a number referring to the maximum number of animals, not including natural mortalities, that may be removed from a population annually while still allowing that population to reach or maintain its optimum sustainable size.  The deaths of at least five blue whales from ship strikes in Southern California in 2007, as well as two additional ship strike mortalities along the California coast in October 2009 appear to indicate that actions need to be taken.  Andrea Treece, an attorney with the Center for Biological Diversity said:

“Abundant blooms of krill have brought blue whales to our coast, which has given many people a wonderful opportunity to see this rare, mammoth creature.  Unfortunately, as more whales have gathered off busy ports, more have been hit and killed by ships.  The Fisheries Service’s refusal to address threats like ship strikes threatens to erase all the hard-won progress this species has made so far.”

Under the Endangered Species Act, potential litigants must file a 60-day notice of intent to sue before lawsuits can be filed alleging that the government has failed to carry out its nondiscretionary duties under the Act.  While the conservation organizations are committed to pursuing legal remedies if necessary, it is their hope that submission of the notice will prompt the Fisheries Service to begin implementing the Blue Whale Recovery Plan without court intervention.

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Washington Post Editorial, February 12, 2009

Interior Secretary Salazar Keeps his Options Open on Offshore Drilling 

17transition2-6001Here’s the ultimate midnight regulation: On the very last day of the Bush administration, the Interior Department proposed a new five-year plan for oil and gas leasing on the outer continental shelf. All hearings and other meetings on the scope of the plan, which would have opened as much as 300 million acres of seafloor to drilling, were to be completed by March 23, 2009. On Tuesday, Ken Salazar, President Obama’s interior secretary, pushed back the clock 180 days, imposing order on a messy process.

Mr. Bush’s midnight maneuver would have auctioned oil and gas leases without regard to how they fit into a larger strategy for energy independence. More can be done on the shelf than punching for pools of oil to satisfy the inane “drill, baby, drill” mantra that masqueraded as Republican energy policy last summer.

Mr. Salazar’s 180-day extension of the comment period is the first of four actions that he says will give him “sound information” on which to base a new offshore plan for the five years starting in 2012. He has directed the Minerals Management Service and the U.S. Geological Survey to round up all the information they have about offshore resources within 45 days. This will help the department determine where seismic tests should be conducted. Some of the data on the Atlantic are more than 30 years old.

The secretary will then conduct four regional meetings within 30 days of receiving that report to hear testimony on how best to proceed. Mr. Salazar has committed to issuing a final rule on offshore renewable energy resources “in the next few months.” Developing plans to harness wind, wave and tidal energy offshore would make for a more balanced approach to energy independence. It would also have the advantage of complying with the law. Mr. Salazar helped to write a 2005 statute mandating that Interior issue regulations within nine months to guide the development of those offshore renewable energy sources [the Energy Policy Act of 2005], a requirement that the Bush administration ignored.

Mr. Salazar’s announcement was also notable for what it didn’t do. Much to the chagrin of some environmental advocates, it didn’t take offshore drilling off the table. Nor did it cut oil and gas interests out of the discussion.

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SUSAN CHAMBERS, The World, February 3, 2009

Coos Bay — The announcement came as a surprise to everyone.

beachpThe Federal Energy Regulatory Commission’s Thursday order issuing a preliminary permit for a 200- to 400-buoy wave energy project off of Newport shocked Ocean Power Technologies leaders as well as the public.

“It’s a project, a site that is not on our priority list right now,” OPT spokesman Len Bergstein said. “It was a little bit of a surprise to us in terms of timing.”

What’s different about this project is that FERC’s approval stirs up a hornet’s nest at the time OPT is trying to work with residents on the South Coast for community approval of two sites: a 10-buoy project off of Gardiner and a 200-buoy project off of the North Spit.

It also calls into question FERC’s intentions of adhering to a memorandum of understanding previously negotiated with Oregon to give the state greater siting power over wave energy projects in the territorial sea.

The approval also seems to be designed for FERC to flex authority over territory traditionally overseen by the U.S. Department of Interior’s Minerals Management Service. Both agencies have claimed the area outside of Oregon’s territorial sea, beyond three nautical miles.

Mixed Messages

As the FERC notice of approval hit residents’ e-mail inboxes late Thursday, outrage began to build.

“My concern is this sends the wrong message,” said Lincoln County District Attorney Rob Bovett. “This is high-value crab grounds, about as valuable as you get.”

OPT applied for the permit in November 2006, but let the application slide. The jurisdictional battle meant the application was going nowhere fast. OPT decided to concentrate its work on the Gardiner and Coos Bay sites, both of which are inside the territorial sea.

Bergstein said as soon as he found out about the approval, he immediately called Lincoln County Commissioner Terry Thompson and other Lincoln County folks, particularly those involved with the Fishermen Involved in Natural Energy group.

“Clearly, we have not been prompting FERC,” Bergstein said.

Bovett, who was involved in the commenting on the original OPT application, said Fishermen Involved has been working with wave energy companies to determine the best sites for development that would have the least impact on the fishing industry and local communities. This, though, was different.

“FINE wasn’t involved in the selection of this box,” Bovett said.

State vs. FERC?

Bovett’s first question was: Does the memorandum of understanding not mean anything?

In March 2008, FERC and Oregon signed a memorandum designed to “coordinate the procedures and schedules for review of wave energy projects.”

Bovett just chuckled.  According to the deal, he said, FERC wasn’t going to issue permits willy nilly. 

Some of the discrepancy over the decision to issue a preliminary permit — which allows OPT to only study the area for feasibility — may be because Oregon hasn’t finished updating its territorial sea plan. The Ocean Policy Advisory Council and the state have been working on it, but the marine reserves issue has dominated the council’s time over the past year.

“This will obviously get everybody’s attention,” Southern Oregon Ocean Resource Coalition Chairman Nick Furman said of FERC’s decision.

That’s putting it lightly.

Whereas the Reedsport and Coos Bay sites are considered by some to be ground zero as far as local communities negotiating with wave energy developers, the Newport site could be ground zero for state vs. federal and agency vs. agency jurisdiction and siting battles.

However, Bovett said, OPT holds the key right now.

The New Jersey-based wave energy developer should withdraw from  the site, he said. Otherwise, years of litigation seem likely — and courts ultimately would have the final say over which agency should be in charge of alternative energy.

“OPT can fix this,” Bovett said. “It’s exactly what they should do.”

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NICOLAS CONFESSORE, The New York Times, August 18, 2008

BURKE, N.Y. — Everywhere that Janet and Ken Tacy looked, the wind companies had been there first.

Dozens of people in their small town had already signed lease options that would allow wind towers on their properties. Two Burke Town Board members had signed private leases even as they negotiated with the companies to establish a zoning law to permit the towers. A third board member, the Tacys said, bragged about the commissions he would earn by selling concrete to build tower bases. And, the Tacys said, when they showed up at a Town Board meeting to complain, they were told to get lost.

“There were a couple of times when they told us to just shut up,” recalled Mr. Tacy, sitting in his kitchen on a recent evening.

Lured by state subsidies and buoyed by high oil prices, the wind industry has arrived in force in upstate New York, promising to bring jobs, tax revenue and cutting-edge energy to the long-struggling region. But in town after town, some residents say, the companies have delivered something else: an epidemic of corruption and intimidation, as they rush to acquire enough land to make the wind farms a reality.

“It really is renewable energy gone wrong,” said the Franklin County district attorney, Derek P. Champagne, who began a criminal inquiry into the Burke Town Board last spring and was quickly inundated with complaints from all over the state about the wind companies. Attorney General Andrew M. Cuomo agreed this year to take over the investigation.

“It’s a modern-day gold rush,” Mr. Champagne said.

Mr. Cuomo is investigating whether wind companies improperly influenced local officials to get permission to build wind towers, as well as whether different companies colluded to divide up territory and avoid bidding against one another for the same land.

The industry appears to be shying away from trying to erect the wind farms in more affluent areas downstate, even where the wind is plentiful, like Long Island.

But in the small towns near the Canadian border, families and friendships have been riven by feuds over the lease options, which can be worth tens of thousands of dollars a year in towns where the median household income may hover around $30,000. Rumors circulate about neighbors who can suddenly afford new tractors or trucks. Opponents of the wind towers even say they have received threats; one local activist said that on two occasions, she had found her windshield bashed in.

“My sisters and brothers won’t even talk to me anymore,” said Mr. Tacy, who with his wife has become active in recent years in a network of people who oppose the wind companies. “They tear communities apart.” Opponents of the farms say their scenic views are being marred by the hundreds of wind towers already in place, some of which stand nearly 400 feet tall. They also complain of the irritating hum of spinning turbines and what they say are wasteful public subsidies to wind companies.

But corruption is a major concern. In at least 12 counties, Mr. Champagne said, evidence has surfaced about possible conflicts of interest or improper influence.

In Prattsburgh, N.Y., a Finger Lakes community, the town supervisor cast the deciding vote allowing private land to be condemned to make way for a wind farm there, even after acknowledging that he had accepted real estate commissions on at least one land deal involving the farm’s developer.

A town official in Bellmont, near Burke, took a job with a wind company after helping shepherd through a zoning law to permit and regulate the towers, according to local residents. And in Brandon, N.Y., nearby, the town supervisor told Mr. Champagne that after a meeting during which he proposed a moratorium on wind towers, he had been invited to pick up a gift from the back seat of a wind company representative’s car.

When the supervisor, Michael R. Lawrence, looked inside, according to his complaint to Mr. Champagne, he saw two company polo shirts and a leather pouch that he suspected contained cash.

When Mr. Lawrence asked whether the pouch was part of the gift, the representative replied, “That’s up to you,” according to the complaint.

Last month, Mr. Cuomo subpoenaed two wind companies, Noble Environmental Power, based in Connecticut, and First Wind, based in Massachusetts, seeking a broad range of documents. Both companies say they are cooperating with the attorney general.

“We have no comment on specifics, but we want to be clear: Noble supports open and transparent development of wind projects in accordance with the highest ethical standards,” said Walt Howard, Noble’s chief executive.

The industry’s interest in New York’s North Country is driven by several factors. The area is mostly rural, with thousands of acres of farmland near existing energy transmission lines. Moreover, under a program begun in 2004, the state is entering into contracts to buy renewable energy credits, effectively subsidizing wind power until it can compete against power produced more cheaply from coal or natural gas.

Nine large-scale wind farms housing 451 towers, each with a turbine, are in operation in New York, with at least 840 more towers slated for construction, according to state officials. And in June, Iberdrola S.A., which is based in Spain and is one of the world’s largest energy producers, announced its proposal to invest $2 billion to build hundreds more towers here.

Every day in the North Country during the warm months, trucks pulling giant flatbed trailers rumble down the highways, carrying tower sections and turbine blades. Some residents see the trucks not as a disturbance, but as an omen of jobs, money and cleaner air.

“I feel as a mother, as a grandmother, that the country needs it — not just here,” said Susan Gerow, a Burke resident who has signed easements with Noble worth about $3,000 a year. Like others who have signed deals with the companies, Ms. Gerow and her family will also earn a portion of the revenue from the windmills if they are ever built.

The North Country is a chronically distressed region, and farming is increasingly a profitless enterprise here. The General Motors plant in Massena, for years a reliable source of good jobs, is closing in mid-2009. One of the few bright spots in the local economy in recent decades has been the construction of state prisons, of which there are now five in Franklin County alone.

“You’re talking about a poor farming community out here,” said Brent A. Trombly, a former town supervisor of Ellenburg, which approved a law to allow and establish regulations for the wind towers in 2003. “Our only natural resources are stone and wind.”

For some farmers, he said, the wind leases were their last chance to hold onto land that had been in the family for generations. Supporters also say that the wind towers bring in badly needed tax revenue.

“We see this industry coming, we see the payments coming in,” said William K. Wood, a former Burke Town Board member who also signed a lease option. The school board of Chateaugay, he pointed out, received $332,800 this year from Noble for payments in lieu of taxes, money that the district used to lower school taxes, upgrade its computers and provide a prekindergarten class for the first time.

The local debates over wind power are driven in a part by a vacuum at the state level. There is no state law governing where wind turbines can be built or how big they can be. That leaves it up to town officials, working part time and on advice from outside lawyers, some of whom may have conflicts of their own.

Two Franklin County towns, Brandon and Malone, have passed laws banning the wind turbines. But the issue remains unresolved in Burke, population 1,451, where two Town Board members recused themselves from the issue this year because they had leases with wind companies, leaving the board deadlocked.

At a meeting last month at Burke’s Town Hall, opponents and supporters sat on opposite sides of the aisle, arms crossed. The mood, as it has often been at such meetings, was quietly bitter.

“I’d like to hear what people think,” said Darrel Bushey, the town supervisor and a wind-tower opponent.

“We’ve listened to the people for two years,” responded Timothy Crippen, who sits on the town’s zoning board, which favors permitting the turbines. “It’s time to make a move.”

Some hands shot into the air from the audience, but were ignored.

“There is no decision you are going to make that is going to make everyone happy,” said Craig Dumas, another zoning board member, almost pleading for action.

But the meeting soon broke up, still with no decision made.

“This is a problem for these communities,” Mr. Dumas said as the room emptied. “There’s a lot of emotion on both sides.”

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KELLY HARRINGTON, SNL Interactive, June 18, 2008

Spanish utility Iberdrola SA will reconsider its proposed acquisition of Energy East Corp. should New York regulators “impose unacceptable” conditions on the deal, the company said.

The company’s statement comes a day after Administrative Law Judge Rafael Epstein recommended that the Public Service Commission not approve the deal. The proposal, he wrote, “does not satisfy the ‘public interest’ requirement of Public Service Law.” However, if the PSC decides to approve the deal, Epstein said it should do so with several conditions, including one for Iberdrola and its affiliates to exit the generation business in New York.

An Iberdrola spokesman June 17 said the administrative law judge has issued a recommendation and not a ruling and that the company hopes there will be a positive outcome when the full commission makes its decision.

“We hope that will be next month at the July session,” he said.

Iberdrola’s main areas of concern with the recommended decision are the provisions pertaining to the recommended level of “positive benefit adjustments,” and one that would preclude Iberdrola from owning, operating or developing renewable energy that would be interconnected with Energy East’s New York subsidies New York State Electric & Gas Corp. and Rochester Gas and Electric Corp.

Iberdrola has outlined a business plan to invest $2 billion in wind energy development in New York, some of which would be connected to those utilities’ systems, he said.

“As Iberdrola Chairman Ignacio Sánchez Galán has said, Iberdrola will reconsider this transaction and seek other options in the United States if the final PSC ruling imposes unacceptable conditions on the transaction in these two key areas,” he said.

In his recommendation, Epstein said that NYSEG and RG&E customers should be credited with positive benefit adjustments of $646.4 million, including $201.6 million initially upon completion of the merger transaction. This would result in NYSEG and RG&E delivery rate reductions of $54.8 million, or 4.4%, initially, according to the recommendation.

Iberdrola in June 2007 said it would acquire Energy East, including its operations in New York, Maine, Connecticut, New Hampshire and Massachusetts, for about $4.5 billion. Including the assumption of debt, the transaction is valued at about $8.5 billion.

FERC and regulators from Connecticut, Maine and New Hampshire have already approved the deal. New York regulators have yet to rule on the proposal. During the review process Department of Public Service staff have outlined concerns about the deal.

New York Gov. David Paterson also weighed in on the recommendation. In a June 17 statement, Paterson said the PSC is not bound to the recommended decision. The governor said he trusts that the commission will keep in mind “significant statewide and ratepayer benefits” from the deal, including Iberdrola’s plan to invest $2 billion in wind energy and its pledge to offer $200 million in ratepayer benefits.

“Although this amount is less than suggested by the administrative law judge, I hope the commission will not let the perfect be the enemy of the good when it comes to ratepayer benefits,” Paterson said. “I look forward to a discussion of benefits in a broader context to capture the full range of future opportunities this acquisition can bring about. Creative solutions to address the issues surrounding utility ownership of limited wind resources can be found and defining ratepayer benefits more broadly to encompass capital investments in clean energy are among the things the commission should look at in deciding to let this important acquisition move ahead.”

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NICHOLAS CONFESSORE, International Herald Tribune, June 17, 2008

ALBANY: An administrative law judge advised state regulators on Monday to block a Spanish energy conglomerate’s bid to buy Energy East, a Maine-based utility with operations in four states, including New York, citing anticompetitive concerns.

The recommendation by the judge, Rafael Epstein, largely sided with an earlier recommendation by staff members of the Public Service Commission, which must approve the acquisition of Energy East by the conglomerate, Iberdrola. The commission’s five-member board will have the final say.

Iberdrola’s bid has the enthusiastic support of key members of the state Legislature and U.S. Senator Charles Schumer, Democrat of New York, who point to the company’s plan to invest at least $2 billion in building wind power facilities in New York if it is permitted to acquire Energy East, which is the parent company of two other utilities in upstate New York and already owns wind turbine facilities. Governor David Paterson also says he supports the deal as long as Energy East’s customers are protected from unfair pricing.

But regulators say that the merger would give Iberdrola a virtual monopoly on wind power generation in the state while also providing the company with transmission and distribution lines, running afoul of state laws that prevent the generation, transmission and distribution of power by a single company.

In his decision, Epstein noted that “Iberdrola’s wind generation ownership also has engendered an unusual amount of commentary by editorial boards and public officials, uniformly opposing ownership restrictions as contrary to the state’s interests and even ‘stone-headed.”‘

But he appeared unpersuaded by Iberdrola’s promise of investment, writing that “the economic benefits of competition are no less real than an immediate infrastructure investment.”

Epstein also recommended that the board impose numerous conditions on Iberdrola, should it ultimately approve the sale. They include limits on the company’s ownership of electric generating plants in New York and rebates worth hundreds of millions of dollars to customers of the companies being acquired.

A spokesman for Iberdrola said the company was reviewing the judge’s recommendation.

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