A bill to revise parts of the state’s environmental permitting process will limp onto the Senate floor Tuesday, with support for its current form at best tepid from the business community and environmental organizations. Both sides hope to amend it in their favor if it reaches the House.
Controversy around the bill, S. 28, surrounds language about who is eligible to be a party to Act 250 hearings, in response to what environmentalists call an erosion of citizens’ rights to be represented.
The other provision in dispute begins a four-year pilot project in the Washington, Chittenden, and Rutland County Act 250 District Commissions that would formalize some proceedings and change the process and possibilities of appealing to the Environmental Court.
The environmental community and their allies are attracted to new language describing who has a “particularized interest” in a proposed development and therefore is eligible to be a party in Act 250 hearings.
“There’s been a noticeable narrowing of what it means to be a party in an Act 250 process,” explained Sen. Ginny Lyons, D-Chittenden.
Ron Shems is chair of the Natural Resources Board, the state agency that administers environmental permitting. He says the bill aims to clarify existing law on party status, not change it. “It’s basically to ensure that people who have a right to participate, can participate.”
A 2010 Environmental Court decision (In re Pion Sand & Gravel Pit) is cited in the bill itself as an “overly rigorous” decision that the bill corrects, because it wrongfully excluded legitimate parties. In the decision, Environmental Judge Thomas Durkin kept neighbors of the proposed sand and gravel pit out of the District Commission hearings on the grounds that they hadn’t provided proof that the pit would affect their water supply or that dust, possibly containing asbestos, would blow onto their land.
As Sen. Dick McCormack, D-Windsor, put it, “Under present law, to establish you have a particularized interest, you have to basically win your case before you get party status. Party status is really supposed to just get you in the door, so you can try to win your case.”
On the other hand, Sen. Randy Brock, R-Franklin, said Friday that some business groups were interested in amending the bill’s language about party status and that he expected an amendment on Tuesday. By Monday, however, Dawn Francis of the Lake Champlain Regional Chamber of Commerce said they would wait until the bill reached the House to try to amend it.
Business groups have said publicly and privately that they want Vermont to use a federal standard under Article III of the U.S. Constitution, and similar language is already in the bill itself. However, Brian Shupe, executive director of the Vermont Natural Resources Council (VNRC), is skeptical. Access to the District Commission under Vermont law has historically been a low bar to clear, he said. “Neighbors have a right to be heard. We are concerned about going to a federal standard that raises the bar. … If Article III does create a low bar, we’re willing to consider how to phrase the party status provision.”
The other major issue in S. 28 is known as “on-the-record review.” Under current law, if a party appeals a decision of the District Commission, the case goes to the Environmental Court, where it is given a de novo hearing — basically starting over. Environmental advocates say the process allows citizens to participate in the less formal, quasi-judicial process of the District Commissions with the knowledge that they can start over with the help of an attorney if the case is appealed.
Business groups say they have been working for some time to save costs for everyone by not having the same case presented twice. “We advocated in 2004 to eliminate the need to hear a case all over again at the Environmental Court level,” said Francis.
With on-the-record review, the proceedings at the District Commission level would gather evidence that would be a permanent part of the case’s record. If the case is appealed, the Environmental Court would receive videos of the District proceedings plus written submittals, but it would not take new testimony except under “extraordinary circumstances.”
The bill empowers the District Commission in three of the state’s nine districts to experiment with on-the-record review for four years, after which the Legislature would evaluate the effects of using the procedure.
The change goes in the wrong direction, according to some advocates and legislators. Sen. Mark MacDonald, D-Orange, said, “You have people with money, who keep coming back over and over again [to change the permit process], to tell us that citizens can’t come back over and over again.”
MacDonald explained that he was looking at the change of law in light of this century’s history of changes to environmental permitting. “The folks who came in to ask us to change the law — they came in eight years ago to ask us to change the law, and we changed it. Then they came in two years ago to ask us to change the law, and we changed it. And now they’re back again this year to ask us, once again, for the third time, to change the same law. And the law they want us to change says you should do your homework and get a bite at the apple to begin with, and you shouldn’t be able to come back over and over again.”
At the Conservation Law Foundation, Louis Porter indicated the organization is dubious of the bill as written, particularly the on-the-record review pilot. “It’s not something we’re necessarily opposed to, but it has the potential to reduce public involvement and public engagement in what really is their permitting process.”
Shems at the Natural Resources Board acknowledged concerns of both sides, but he likes the idea of the four-year pilot project. “Everyone agrees that it’s difficult to have to duplicate evidence and duplicate testimony; that’s an expense we can look to trim. But some people are concerned that going on the record would create too much formality with the District Commissions,” he said. “The other school of thought is that District Commissions, being a forum that is much more accessible than a court, for example, you create a record that preserves citizens participation, because that’s where they can have their say, and it’s memorialized by the record. A pilot project would let us find out who’s right.”
Other parts of the bill have generated little or no controversy. One would specify a process for a party to force a district commissioner to be recused from a case where the commissioner has a conflict of interest, with the chair of the Natural Resources Board making the final decision. Shupe at VNRC said, “This is something that should have happened decades ago.”
The other major provision would create a new magistrate position at the Environmental Court; the Senate Appropriations Committee has proposed an amendment that the additional staffing be at the level of a staff attorney, who would command a lower salary.
The bill barely passed out of the Senate Natural Resources and Energy Committee last week, on a 3-2 vote. One of the no votes was from McCormack. By Friday, McCormack said he was ready to vote for the bill, because he likes the language describing who has access to the District Commission through party status — language some business groups are looking to change.
If the bill passes the Senate, the House Natural Resources and Energy Committee is prepared to take three days of testimony on it this week, according to committee Chair Tony Klein, D-East Montpelier. He’s waiting to hear the testimony before declaring a position on the bill. Klein did note that he and Rep. David Deen, D-Putney, introduced a comprehensive permit reform bill last year, and he expressed their disappointment that this more narrow bill is what it evolved to.
Asked about the narrow nature of this bill compared to the Klein-Deen bill, Shems said, “It’s been very difficult to move this incremental step. I think it would be even more difficult to move a more comprehensive step, so we’ve taken the approach to try to do it incrementally. Hopefully this is a step in the right direction and it will be expanded, and the end results will be the same.”
