Our Coalition Has Filed A FOIA Complaint Against Sussex County For Controversial Biogas Scheme

We think Sussex County violated open notice requirements when it approved bonds for Bioenergy DevCo’s planned factory farm biogas operation. Here's why.

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Climate and Energy

This week, Sussex Health & Environment Network, the Socially Responsible Agriculture Project, Delaware Alliance for Community Advancement, and Food & Water Watch, filed a Freedom of Information Act complaint against Sussex County to the Delaware Department of Justice. For months, we have been closely following Bioenergy DevCo’s plans to construct an industrial factory farm biogas operation to produce dirty gas for insertion into regional pipeline networks. The project poses direct threats to public health and safety, and exacerbates these problems in an environmental justice community already dealing with nearby Superfund sites and polluting poultry factory farms. Despite these threats, we have had to fight alongside other County residents to even get public input in the project.

To understand the roots of our FOIA Complaint, we need to go back a few weeks. On April 21, our organizations and our allies discovered something unexpected on the agenda for the April 27 meeting of Sussex County Council — a vote to approve up to $60 million in tax-exempt bonds to fund the construction of the Bioenergy DevCo biogas project near Seaford. Despite our months-long attention to the biogas scheme, we had not heard anything about county bonds or tax-exempt funding for the project, until now.

So, we contacted the Sussex County administration for information on where and when the bond issuance had been discussed. The answer provided us with yet another surprise. According to Finance Director Gina Jennings, the county’s Industrial Revenue Bond Committee had held a “public hearing” on the bonds on March 17. This answer seemed strange to us, because we had participated in a public hearing about a conditional use permit for the proposed Bioenergy Devco plant on March 16. In fact, more than 300 people had submitted comments in opposition to the conditional use permit, and the two of us had testified in opposition to the conditional use permit, but none of us heard a word about the bond hearing the very next day.

Ms. Jennings assured us that, even though no member of the public attended the March 17 meeting, the county had satisfied IRS regulations for advertising the bond hearing, but what about Delaware’s open notice requirements?. The hearing, during which county officials discussed a highly controversial topic with Bioenergy’s representatives, lasted only 15 minutes without a single person from the public participating. At the end of last month, the bond was approved unanimously.

Laws on public notice requirements exist for important reasons. Typically, hearings dealing with proposed county ordinances must be advertised in at least two general circulation newspapers at least 15 days in advance. This level of notice seems both appropriate and the established custom for several reasons. First, not everyone has access to the Internet, even in 2021. One third of the communities that live closest to the site who will be most affected by the pollution, traffic and public safety concerns of Bioenergy’s scheme live below the poverty line — internet accessibility is not a given. Second, during the enduring COVID-19 pandemic, very few people are actually going to the Sussex County Administration Building, thanks to public health warnings and local stay-at-home mandates. The offices were even closed to the public earlier in the pandemic. Third, 15 days’ notice allows the public to research a topic before deciding to comment on it, pro or con.

Ms. Jennings upholds that their notice meets federal requirements. We’ve already proven that it doesn’t meet local custom. Does it meet state law? § 7002 in Title 9 Chapter 70 of the Delaware Code specifically states that public hearings of county bodies (such as the Committee who deals with this bond) “shall” take place 15 days after they are advertised in two general circulation newspapers. Federal IRS regulations might be less strict, but at the end of the day, surely Sussex County is also subject to the Delaware laws designed to protect Delawareans’ ability to weigh in on important matters. All public hearings on the Bioenergy DevCo project, with the exception of the bond issue, were afforded 15 days’ notice in general circulation newspapers prior to the event, as per Delaware law.

To settle the violations as to adequate public notice, we have filed our FOIA complaint with the state, because this bond financing really matters. As it stands, Sussex County has unanimously approved up to $60 million in bonds for the project, which will import hundreds of thousands of tons of industrial poultry waste so that Bioenergy DevCo can generate methane gas to feed regional pipelines. This project is a nightmare for residents and the region, deepening the entrenchment of climate-destroying factory farms and fossil fuel companies at the direct expense of local residents’ health and safety — the County bond process is a blank check to industry interests unless checked at the outset by public involvement.

Sussex County residents don’t want the Bioenergy DevCo project. We demand a reopened bond process that allows for true public involvement.

Sincerely,

Kerri Evelyn Harris, Executive Director
Delaware Alliance For Community Advancement (DelACA) 

Greg Layton, Delaware Organizer 
Food & Water Watch (F&WW) 

Maria Payan, Senior Regional Representative 
Socially Responsible Agricultural Project (SRAP) 

Joseph Meyer, Authorized Representative
Sussex Health & Environmental Network (SHEN)