Quite a fuss was generated over Clean Air Fairbanks’ amendment proposal. First, FDNM editorial published “Stove rules out: It’s tempting, but not right, to ignore October initiative” 1/23/2011. Then, we submitted a Community Perspective in response (read text below). Finally, Mayor Luke Hopkins submitted is own response, “Air quality initiative is law” 1/27/2011. The day our Community Perspective was published, our Air Quality Index again reported smoke made Fairbanks’ air UNHEALTHY FOR SENSITIVE GROUPS. The mayor and Assembly have made clear: a written legal opinion has not been received from legal staff.
Read our Community Perspective, published by FDNM 1/26/2011 and comment below if you like.
Air ordinance goes too far: Mayor seeks to repeal rules unnecessarily
Thank you for writing about Mayor Luke Hopkin’s proposal
for our clean air ordinance
, transforming air pollution control into a largely voluntary program. On Thursday, the Assembly will consider testimony on whether to dump safeguards to reduce smoke pollution.
Our recommendation is that people start with an honest look at what Proposition A actually says, what it does not say, and what it cannot say. Ours is a literal or strict interpretation of Prop A.
We’ve made every effort to promote transparency in a process sadly lacking. Our amendment package is posted on our website and was sent to the Assembly and the Mayor. Our recommendations relate to “improper or injurious misuse,” leaving the “effect” of Proposition A intact, and thus comply with Alaska Statute AS 29.26.190 (a). Furthermore, we flat out recommend that the Assembly pass a resolution acknowledging the voters’ authority to establish Prop A as Borough code, per AS 29.26.170 (d). I would never ignore Prop A. Calling for the voter-approved initiative to be codified as written is the essence of public accountability.
Sneaky is happening, that is true. You could have seen it yourself at the Jan. 20 Assembly’s Committee of the Whole. I was there and watched it unfold.
First, the Mayor’s proposal deletes wet wood from the prohibited fuels list but not through any doing of Prop A. According to Attorney Rene Broker, “There’s a whole lot of other things in here that were just simply suggestions that were incorporated into this ordinance because the Mayor and administration wanted to see these changes.” The other amendments proposed by the administration, “are not justified by Proposition A.”
Even Assembly member Michael Dukes, expressed surprise, “I was one of the primary sponsors of Prop A. So, the removal of the 20% moisture content was something that was inserted yourselves then? I guess I am asking this of Ms. Broker. So, this wasn’t covered by the proposition itself?”
Attorney Broker answered “The prohibited fuel part, dry wood part, was not.”
The Mayor is also recommending removing glossy or colored papers from the prohibited fuels list, also not due to Prop A. Reason for these changes? Prohibiting burning wet wood and glossy or colored paper is “too difficult to enforce.” Even the reason is sneaky. The prohibition against burning wet wood wasn’t to have taken effect until Sept. 1, 2011. How can our Borough know when they’ve never even tried?
Second, the Mayor’s draft strikes out two clean air safeguards due to the influence of Prop A: woodsmoke opacity limits and private property protections from trespassing smoke. Yet, no written legal opinion has been made available. If the Mayor has seen a written legal opinion, we sure haven’t and apparently neither has our Assembly. It lacks transparency to firmly state, “Trust me.”
When we reread the language of Prop, we see no stipulation to remove the woodsmoke opacity or trespassing smoke safeguards. If repealing was intended, the Alaska Constitution, Article 11.1 gives that power solely to the referendum. The initiative may only enact law. Voter intent is best revealed by the initiative language itself, what voters approved. Any conclusion that Prop A may function as a referendum in repealing code is not grounded in our Constitution.
The third big sneak is, the way things are going, Prop A will not be enshrined in code. Whether I care for it or not, as a voter-approved initiative, Prop A is required to be dropped directly into code on the date the election was certified, Oct. 12, 2010, over three months ago.
The Mayor’s draft fails to accept the voter-approved initiative into code as required and proposes something far more injurious than Prop A: the removal of safeguards against smoke pollution. Justification for the gutting is given unequivocally but without substantiation as “justified by Proposition A.” Then, it removes wet wood—the #1 culprit in our PM 2.5 pollution— from the prohibited fuels list, gutting the clean air code without reasonable explanation and beyond the call of Prop A.
Now, who is being sneaky here? This I do not know. I trust and believe in our mayor at least as much anyone in our Borough. Perhaps it is time to seek a second legal opinion, or at least a first. Our smoke problem is too severe and the economic costs of nonattainment too high to throw out public health and property rights safeguards without full legal review. The need for transparency in public decisionmaking and love of our children’s future demand it.
Sylvia Schultz of Fairbanks contributes to Clean Air Fairbanks, a blog that explores issues surrounding airborne particulate matter in Fairbanks and advocates for better air quality. She is the mother of two elementary school-age children.
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