[T]he Shumlin administration has proposed legislation that officials say will create a more predictable process for developers to obtain permits for projects that have environmental impacts.
The bill, S.123, includes a provision that would make it more difficult for opponents of certain projects to raise objections about state environmental permits during an appeal to the state’s Environmental Court, officials say.
S.123 also includes changes that will make it easier for residents and developers to hash out disagreements at the early stages of the application process, officials say. The changes aim to simplify the notification and comment process for project applications.
David Mears, commissioner of the Department of Environmental Conservation, presented the bill to the House Natural Resources and Energy Committee this week. He said the permit changes come as part of an effort to increase efficiency within the department.
Mears said the changes will save the state time and money, make it easier to participate in permit applications and decrease the cost and uncertainty for developers to permit projects. He said he is open to talking about changes to Act 250 or Section 248 that he said are “equally flawed.”
Certain development projects require environmental permits. Upon reviewing the project, DEC decides whether to issue technical permits for impacts to air quality, soil erosion, water quality, wetlands and wildlife habitat.
“These are pretty straightforward questions,” Mears said. But he added that advocates and developers have historically mistrusted the department’s permits. “The net effect of not trusting our department to do this work is that it makes it very unpredictable for the applicants, for the citizens and communities, and it’s very expensive.”
Currently, these permits can be appealed to the state’s environmental court. Under the current system of “de novo” review, the permit is no longer part of the legal record. Mears said this wastes state money and causes uncertainty for developers who may see their project double or triple in cost.
Mears said advocacy groups often wait to appeal projects with the intention of delaying the project and increasing costs. In the past, Mears said he has represented opponents of projects who waited to file an appeal in an effort to hold up a project.
The bill would put in place what’s known as on-the-record review. This would mean the permit — and all the testimony and written documents associated with it — would become part of the permanent record during the appeal. The permits could still be reopened if a party proved that the permit was “clearly erroneous.” This could include that the permit was politically influence, according to Mears.
Mears agreed that the change would make it more difficult for residents to hire an attorney to then fight environmental permits on appeal.
“That’s a fair concern” he said. “But on balance, I would like to create a process that incentivizes the landowner to work with us as much as possible.”
The department wants to create an alternative appeal process. Project opponents could appeal final permit decisions to an administrative law judge, as opposed to the Environmental Court. The judge, however, would work for the department.
“They’re not entirely independent, but if the person was still unsatisfied they could then appeal to the courts,” he said.
