Image by Dylan Kelley for Vermont Commons
The latest high-ranking Vermont Democrat to push for prime military pork in her state is Burlington city attorney Eileen Blackwood, who released a slippery legal memo October 17th that is as cleverly political as it is narrowly legal, leading to widespread, obtuse media coverage along the lines of Vermont Public Radio's simply false headline: "City Report: Burlington Can't Block F-35."
Blackwood's "preliminary analysis" was a memo "responding to some of the legal concerns raised" in the course of three years' "public discussion of the Air Force's consideration of basing the F-35 jets at the Burlington International Airport (BIA)." Blackwood, a Democrat, said her legal memo was requested by Burlington mayor Miro Weinberger (the Democrat who appointed her) and "several City Councilors," unnamed.
Blackwood's 14-page legal memo comes to no such sweeping conclusion, as reported by public radio, WPTZ-TV, the Burlington Free Press, VTDIGGER, and other Vermont media. News reports made the memo sound comprehensive and conclusive when it is very limited and inconclusive. Blackwood has delivered the best case she can for the views of her boss, Mayor Weinberger, just as other attorneys in similar but more serious circumstances offered legal support to presidents who wanted to torture people or assassinate them with drones.
Blackwood argues that the city's position is legal. She doesn't claim that it's right. Her page of "conclusions" is hedged with conditional language - things are "likely," "would likely mean," "would not seem to allow," "would likely be withdrawn," "appears," "seems likely," or "does not appear to apply," a style all very lawyerly. The memo, as she says, "is not intended to serve as a final statement of the City's legal position on any specific issue."
In her last sentence, Blackwood acknowledges the essentially political (not legal) nature of the F-35 dispute, saying, "Voicing opposition would be a political statement that is protected speech" under the Constitution's first amendment. But that's not the whole sentence. The rest of the sentence gives her game away. In what seems a clear move to head off any voicing of opposition, she concludes her memo by warning that protected speech "would carry with it a different set of risks and opportunities than those explored here." In other words: council members, be afraid, be timid.
Blackwood memo designed to influence council vote on October 28th
The Vermont Progressive Party's four members on the Burlington City Council (which has 14 members in all) have been trying since early October to get the council to vote on measures aimed at delaying or blocking the Air Force from basing the controversial F-35 Joint Strike Fighter at the city-owned airport. These Progressives are trying to protect the neighboring communities most at risk from this military escalation in the middle of Vermont's most densely populated area.
The smaller towns of South Burlington and Winooski would take the brunt of personal and economic damage inflicted by the F-35, with no way to exercise any direct influence over their own destiny. Both towns have long been excluded from any representation on the five-member Burlington Airport Commission. By contrast, Mayor Weinberger, as a former commissioner who now appoints commissioners in his role as mayor, is loaded with potential conflicts of interest.
Everyone admits that basing 18 to 24 F-35 stealth bombers at the Burlington Airport will do significant harm to South Burlington, where it's located, and Winooski, which sits directly in the main flight path. Most of the damage assessment comes from the Air Force itself in its environmental impact statement. Opponents of the F-35 have raised additional concerns not addressed by the Air Force.
Proponents of the F-35, including all of the state's top Democratic officials (there are few top Republican officials in Vermont), support the basing plan despite the damage it will cause, usually saying that they believe that the military spending is important to the Vermont economy. Proponents of the F-35 typically say the cost is worth it, without addressing the fairness of the cost largely being borne by others, many of whom are lower-income and/or foreign born (including a significant refugee population).
The city council first scheduled a vote on at least two Progressive resolutions on October 7th, with a public hearing to precede the vote. Four days before the event, the city council president cancelled it because Blackwood had informed her that the council was not insured against liability for any actions they might take regarding the airport they own. According to Blackwood, the city did not have any "public officials liability insurance for the airport that it routinely carries for other city business."
City moves forward, insured against liability attorney implies is chimerical
The city has since acquired the liability insurance, for up to $5 million in damages, as recommended by Blackwood. The council has re-scheduled the public hearing and F-35 vote for October 28th. Blackwood's legal memo argues at length the ways the city council should be legally immune from liability suits of various sorts. The memo does not say why the city council therefore needed liability insurance before even voting on the F-35 and its assortment of potential harms to public health, safety, and property.
There are at least two resolutions, probably more, that will be presented at the October 28 council meeting. One resolution says the city will prevent F-35 basing at Burlington Airport at any time. Another says the city will prevent basing the F-35 at Burlington Airport during the first basing sequence (beginning in 2020 at the earliest, according to the Air Force, which once said it might happen as early as 2015). Another resolution might be only a sense-of-the-council statement, without binding force of law (which Mayor Weinberger has said he expects).
Blackwood's legal memo acknowledges quietly that a municipality that owns an airport has the legal authority to adopt health and safety regulations for that airport, including control of noise. But mostly she describes all the ways Burlington might be limited in its exercise of that right. Her political position is clear: that the city has the right to protect health and safety in a way that could bar the F-35 from the airport, but it shouldn't even consider exercising that right because, well, someone might sue or something.
In a brief, preliminary response to Blackwood, attorney James Dumont writes:
"Eileen Blackwood's memo accepts the most basic point we have been making for months - that unlike South Burlington, Burlington is the proprietor of the airport and therefore it has authority that South Burlington lacks. Federal noise standards preempt South Burlington's authority to regulate through zoning or other regulations. The caselaw we submitted and that Blackwood found all agrees that a city that owns an airport can set noise or other standards as proprietor, not regulator."
Does Vermont still know what it means to be a good neighbor?
Although Dumont leaves it implicit, the fundamental question is whether Burlington, unlikely to feel much negative impact from the F-35, has the integrity, conscience, neighborliness, or will to act to protect the health and safety of South Burlington. A corollary question is whether Burlington will face any consequences if the city fails to act, and South Burlington suffers the grievous harm the Air Force and others predict.
Dumont, who represents the Stop-the-F-35 Coalition, argues that Blackwood's memo is, in effect, mostly smoke and mirrors:
"None of the cases cited in the memo address the situation in Burlington. Uncited cases and scholarly articles explain that in the Burlington situation local action is acceptable if the purpose is within the traditional purposes of local government - protection of the public health of the local public - and if the effect is not to directly control military affairs. For example, there is the case of Arthur D. Little v City of Cambridge, decided by the highest court in Massachusetts. The City there adopted a regulation, like the proposed resolution here, which had the purpose of protecting local public health. The regulation banned all manufacture of chemical weapons in the city."
When the chemicals weapons maker, Arthur D. Little, sued to continue making chemical weapons in Cambridge, the Massachusetts Supreme Court forcefully rejected Little's claims and emphasized the city's right and duty to enact laws "to protect the public health and welfare.... municipal health and safety regulations, such as that at issue here, carry a heavy presumption of validity, and are only rarely preempted by Federal law."
According to Dumont, there will a resolution of this sort offered to the city council on October 28th: "It is explicitly a public health measure."
In addition to the four Progressives on the city council, there are one Republican, two Independents, and seven Democrats. The Democrats are all under pressure from their party leaders - including U.S. Senator Patrick Leahy, Rep. Peter Welch, and Gov. Peter Shumlin - to support the F-35, although none of these "leaders" has offered a coherent argument as to how this nuclear-capable bomber serves the common good.
Ultimately the question comes down to whether Democratic loyalty to Pentagon extravagance is some kind of justification for Burlington to impose damage on its neighbors against their will. It should be unconscionable.
Previously published at Reader Supported News