June 25, 2013

The lobbyist in the henhouse: Whose interests is Maine’s DEP commissioner serving?

For two years, public servant Patricia Aho has overseen Maine's environmental protection. But whom does she really serve? A seven-month investigation by the Telegram points to her former corporate clients. Part 1 of a 3-day series.

By Colin Woodard cwoodard@pressherald.com
Staff Writer

(Continued from page 2)

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Maine DEP Commissioner Patricia Aho

Carl D. Walsh/Staff Photographer

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Flagstaff Lake near Eustis, seen here last month with Bigelow Mountain in the background, experiences dramatic changes in water level in summer, thanks to utility drawdowns at a dam on the eastern side of the lake. Residents say the drawdowns adversely affect the quality of life in and around the lake. The Maine Department of Environmental Protection, led by Commissioner Patricia Aho, missed a filing deadline and deprived the state a say in how the dam is regulated. The DEP’s inaction cleared the way for the issuance of a new federal license that lacked stricter water-level rules and will remain in effect until 2036. Aho’s office called the blown deadline an oversight, but internal documents and department insiders tell a very different story.

Shawn Patrick Ouellette/Staff Photographer

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From lobbyist to DEP commissioner

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HERE'S WHAT WE FOUND

A Portland Press Herald/Maine Sunday Telegram investigation has found Patricia Aho, a former industrial and corporate lobbyist who became commissioner of the state’s Department of Environmental Protection in 2011, has scuttled programs and fought against laws that were opposed by many of her former clients in the chemical, drug, oil, and real estate development industries. Under Aho, the DEP has:

Frozen the Kid Safe Products Act – a 2008 law to protect fetuses, babies and children from potentially damaging chemicals – by blocking efforts to bring more chemicals under the law’s jurisdiction, chemicals produced by Aho’s former lobbying clients.

Reduced enforcement actions by 49 percent against large developers and landowners. Aho had unsuccessfully fought to weaken many of the laws at issue as the longtime lobbyist of the Maine Real Estate and Development Association.

• Fought to roll back recycling programs that are strongly opposed by former clients of Aho and a still-active lobbyist, Ann Robinson, the governor’s regulatory reform adviser.

Oversaw a purge of information from the DEP’s website and a clampdown on its personnel, restricting their ability to communicate relevant information to lawmakers, the public, policy staff and one another.

THIS WEEK IN THE PRESS HERALD

MONDAY: Led by a former chemical industry lobbyist, the Maine DEP has stalled efforts to regulate substances that are potentially harmful to children and to the development of unborn fetuses. 

TUESDAY: So-called “product stewardship” regulations – even recycling efforts with industry and bipartisan support – find staunch resistance at the Maine DEP, where a former corporate lobbyist has taken the helm.

Lobbying disclosures show Aho had fought passage of the Kid Safe Products Act in 2008 on behalf of AstraZeneca pharmaceuticals, the American Petroleum Institute and lead paint manufacturer Millennium Holdings. Just weeks before being appointed to the DEP, Aho was working as the principal lobbyist for the American Chemistry Council, which has opposed the law.

At the time of Lani's testimony, the governor's regulatory reform adviser, Preti Flaherty lobbyist Ann Robinson, was a registered lobbyist of one of the groups seeking to defeat the ban, the Toy Industry Association of America, even as she was helping draft and roll out the governor's regulatory reform agenda. Robinson had also fought the Kid Safe Products Act in 2008 on behalf of the Pharmaceutical Research and Manufacturers of America, or PhRMA, and drugmaker Merck, and the Toy Industry Association had hired her firm to lobby for passage of a 2011 bill that critics said would have effectively repealed the law.

Two days after Lani gave her testimony, Aho ordered her investigated to see "whether she had improperly used state resources in developing her testimony," according to legal briefs filed in federal court. The investigation determined she had not violated any policies, but Lani was nonetheless reassigned to the records office shortly thereafter, leaving the Kid Safe Products Act in the hands of "a much less qualified individual who began working for the DEP in January 2011 at an entry-level clerical position," according to the brief.

Lani sued Aho and another DEP official in federal court for allegedly having retaliated against her "in reckless disregard of her federal constitutional rights." The state paid $65,000 to Lani and her attorneys in an out-of-court settlement reached in April 2012. Under the terms of the agreement, none of the parties is allowed to discuss the case or disparage one another. Lani remains the department's public records coordinator.

Several sources said the incident has had a chilling and lasting effect on staff.

"People including myself were horrified that something that blatant would be done to a staff person who was within their legal rights and very well-respected, bright, hardworking and caring," says biologist Barbara Welch, who resigned in January of this year and says she has filed harassment grievances against her supervisor, Samantha DePoy-Warren, a political appointee who was until recently the department's communications director. "We followed her case and were astounded by what happened to her."

"It was startling," says Bob Birk, a landfill cleanup specialist who had accompanied Lani to the State House when she gave her BPA testimony and who retired from the DEP last September. "People felt they had to walk on eggs and literally keep their heads down."

THE TARGETS: ANY EMPLOYEES WHO DIDN'T 'WORK WITH INDUSTRY'

DEP employees interviewed by the Telegram reported there have been few if any changes within the Air Quality Bureau, while the Land Division and the Remediation and Waste Management Bureau -- which has oversight over the Kid Safe Products Act and product recycling laws -- have borne the brunt of the staffing and policy changes.

According to a detailed list of recommendations Preti Flaherty prepared for LePage in late December 2010, its industrial clients were satisfied with the air bureau but did not have "a great relationship" with the Waste Management Bureau. The firm's attorneys urged LePage to make a "serious effort" to rid the department of employees who didn't "work with industry" on enforcement issues.

"The areas of the department with the least disruptive change are those who work with traditional, highly regulated communities: water licensing and air licensing," says Malcolm Burson, who was DEP deputy policy director until November 2011. "They're going about business the way they always have gone about business."

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Additional Photos

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Current and former employees of the Maine Department of Environmental Protection say they’ve been pressured against vigorously implementing or enforcing laws that have long been opposed by companies represented by Commissioner Patricia Aho’s former employer, Pierce Atwood, the state’s largest law firm. The firm’s Portland office building on Commercial Street is pictured earlier this month.

Gabe Souza / Staff Photographer

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A sign warns about water-level changes at Flagstaff Lake in Eusis that could result from decisions by owners of the Flagstaff dam.

Colin Woodard / Staff Writer



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