by Lisa Pohlmann, NRCM Executive Director
Good afternoon Sen. Mazurek, Rep. Theriault and Members of the Transportation Committee. My name is Lisa Pohlmann. I am a resident of Jefferson. I am the Executive Director of the Natural Resources Council of Maine. I am here today on behalf of the 12,000 members and supporters of the Natural Resources Council of Maine in support of LD 721.
The Public-private Partnership for Transportation Projects law went into effect in July, 2010. The law sets out the standards a project must meet to be declared a public-private transportation project partnership, and the process to be followed to determine if a project is a public-private project.
Our concern with the public-private partnership law is with Subsection 10:
10. Confidentiality of proposals and negotiations. All records, notes, summaries, working papers, plans, interoffice and intraoffice memoranda or other materials prepared, used or submitted in connection with any proposal considered under this subchapter are confidential and not subject to public review until the department determines that the proposal meets the standards of this subchapter or until the proposal is finally rejected by the department.
[2009,c. 648,Pt. A,§1 (NEW).]
We now have what may be the first public-private partnership proposed under this new law. As I am sure you have heard, Mr. Peter Vigue of Cianbro Corporation is speaking across the state (and Canada) promoting an east-west “transportation, utility and communications” corridor across Maine, running from somewhere near Calais on the border with New Brunswick to Coburn Gore on the Quebec border. He describes this corridor as being 220 miles long.
The 2012 session of the Legislature passed LD 1671, which directed the Maine Department of Transportation to oversee a study of the feasibility of an east-west highway, using $300,000 of public money.
If the project is determined to be a public-private partnership, the public will have no access to any information about the project, including the proposed route which could cross: the land of hundreds of Maine home and property owners, a dozen or more properties under conservation ownership or management including the Appalachian National Scenic Trail, at least two major rivers, the Penobscot and the Kennebec, and scores of smaller rivers, streams, and brooks, dozens of wetlands, and other important wildlife habitat. Clearly a project such as this would have a major impact on the public and private resources of the state.
Yet, according to current law, all information will remain confidential until “the department determines that the proposal meets the standards of this subchapter or until the proposal is finally rejected by the department.”
The list of standards the department must find are met in order for the cloak of confidentiality to be lifted is very long. (23 M.R.S. §4251, subsection 4). Ironically, standard (L) on this list is:
L. The proposal and transportation facility are in the best interest of the public.
Thus, the law directs the department to determine if a project is in the public interest while barring the public from any knowledge of any of the specific details of the project. Thus, the department will be making a decision regarding the public interest without the benefit of any comments or information from the public knowledgeable about the specifics of the project.
One of the issues of great interest to the taxpayers of this state will be the financial cost of such a project to taxpayers. In particular, what will be the cost to the public if the private partner goes bankrupt or otherwise pulls out of the project once it has begun? In California, three separate public-private transportation projects have been built; each one cost roughly two to three times what was originally proposed. In order for the public to be able to participate meaningfully in the discussions about a proposed project and to evaluate whether the proposed costs are, in fact, realistic, the public must have access to information about the project. And this information must be provided BEFORE the Department renders its decision about whether a proposed project is in the public interest or not.
Surely the public should be entitled to know information such as the proposed route, the purpose of the project, what types of public and private resources will be affected, whether the proposal plans to use eminent domain authority to take private property, what the role of the public sector in the project will be, what the projected public costs and economic benefits of the project will be, who the developer will be, what potential liability the public may have to assume if the private partner pulls out or goes bankrupt and many other pieces of information that are routinely disclosed for private development projects. The presumption should be in favor of disclosure of this type of information. If we are using public resources to develop a project, the information should be public.
Our concern about this confidentiality provision goes far beyond the east-west corridor proposal. This is simply the first example to come forward. It may be that ultimately the east-west corridor project is a purely private project. Mr. Vigue has stated publicly both that it will be and that it will not be a public-private partnership. However the project has already proposed to use public funds for a feasibility study, so there is clearly public involvement already. And the next public-private partnership project to come forward will raise exactly the same issues regarding public information.
This type of information is routinely available to the public in private development projects. There is no justification for limiting it in a project that has public involvement. This is especially important considering the track record of public-private partnerships elsewhere, which includes projects that have gone bankrupt. Attached to my testimony is an article about the South Bay Expressway, a public-private partnership in San Diego, which I encourage you to read. The South Bay Expressway was a financial failure, ended up in Chapter 11 bankruptcy, and was then sold to the San Diego Association of Governments. I urge the Committee to consider the implications for Maine if a public-private project were to move forward in the future, and also ended up in bankruptcy, with Maine taxpayers assuming the responsibility for ownership and operation. What if important information that could have prevented such a situation was contained in confidential information that the public never saw?
We urge you to vote Ought to Pass on LD 721. Thank you for the opportunity to speak.