One week after Gov. Phil Scott issued an order restructuring the way Act 250 land use applications are reviewed, the sweeping changes already face legal hurdles.
Lawmakers are looking at options for blocking changes in the makeup of the Natural Resources Board and new processes for reviewing Act 250 land use applications.
Meanwhile, a Berlin environmental attorney has filed a lawsuit challenging the constitutionality of the reorganization.
Under the executive order, the Natural Resources Board would be reduced from five members to three members and would have more authority to review major Act 250 project applications. For the last 50 years, Act 250 has had a major role in considering development projects.
The governor’s order says the board restructuring would go into effect automatically unless both the Vermont House and Senate reject it within 90 days from the date it was issued: Jan. 14.
In a memo issued Tuesday, Luke Martland, chief counsel for the Vermont Legislature, wrote that a veto from only one chamber is needed to block the executive order from becoming law.
The Scott administration disagrees with Martland’s position.
During a joint hearing Thursday with the House and Senate committees on natural resources, Jaye Pershing Johnson, Scott’s general counsel, said the administration decided to include a requirement for both chambers to object in order to “give the Legislature notice.”
Johnson said the governor’s legal position is based on U.S. Supreme Court precedents in the last three years that support the assertion that the House of Representatives and the Senate must concur on vetoes to executive orders.
“In this executive order, we wanted to be clear that we were putting the General Assembly on notice, that was our position,” Johnson said.
The Scott administration’s position is to allow legal issues to be sorted out in the courts, she said. Johnson urged the Legislature to focus on the merits of the policy within the order.
“When we have two branches of government, with different positions on the law, it seems to me prudent to let the third branch decide,” Johnson said.
The lawsuit, filed in Vermont Superior Court on Wednesday, makes a sweeping constitutional argument that challenges the authority of executive orders that circumvent existing law, and it claims the Legislature has no power to veto such an order from the governor.
The court challenge has been brought by attorney James Dumont, who represents David Grayck, a lawyer who concentrates on environmental and land use law.
In an interview, Dumont said the lawsuit has very little to do with the governor’s plan to restructure the Natural Resources Board.
“This lawsuit is not about whether what the governor wants to do is a good idea or a bad idea,” Dumont said. “This lawsuit is about if you want to do that, you have got to go through the Legislature.”
Dumont hopes the lawsuit will move quickly and there will be a ruling in the next month, which would give the Scott administration or Dumont time to take the case to the Vermont Supreme Court.
“If we are not satisfied with the ruling, yes, we would take an appeal,” Dumont said.
Johnson says the governor has full authority to restructure the executive branch.
