February 11, 2012

Maine lawmakers poised to diminish agency power to interpret rules

By Steve Mistler, Staff Writer, Sun Journal, www.sunjournal.com 10 February 2012

AUGUSTA – Lawmakers will soon decide whether judges should give less weight to decisions made by state agencies.

Current Maine law requires justices to give strong deference to departmental rulings on matters such as development permits or enforcement of insurance laws. But that could change if lawmakers approve LD 1546, a bill quietly moving forward that would require judges to review regulatory rulings without historical precedent in the event of an appeal.

Supporters of the bill, including the LePage administration, argue it guards against institutional bias at agencies where departmental culture can lead to rulings that contradict the Legislature’s initial reason for the regulation.

Dan Billings, Gov. Paul LePage’s chief legal counsel, said the proposal also would give those people appealing agency decisions a better chance at a fair ruling. Right now, he said, someone who challenges a departmental ruling is compelled to work with the agency because the state’s deference law gives them little chance of winning in court.

“We think it brings the law more to the center and would give agencies an incentive to be a little more reasonable,” Billings said.

Opponents, meanwhile, say the bill could lead to more lawsuits that could ultimately halt projects such as wind farms and other developments. The bill was originally included as a provision of the Legislature’s regulatory reform package, LD 1, approved last year.

However, according to Sen. Seth Goodall, D-Richmond, the provision was jettisoned by lawmakers after business owners worried it would further slow development by allowing opponents to hold up projects in court.

Goodall said agencies that deal in land-use permitting green-light 98 percent of applications.

“With this bill, you could have developments that are on the verge of putting a shovel in the ground suddenly have to stop because of a lawsuit,” he said. “Decreasing agency deference could delay projects and increase costs. That’s just something we can’t afford when the state is trying to encourage economic development.”

The state’s attorney general also has expressed concerns about the bill. Linda Pistner, testifying on behalf of the attorney general last month, said it could lead to inconsistent interpretation of regulations because judges review appeals on a case-by-case basis. Pistner, in a May 2011 letter to the Legislature’s Judicial Committee, also warned that it could significantly increase costs to the Attorney General’s Office, which is responsible for defending agency decisions in court.

The attorney general originally expressed concerns that the bill would create problems with the separation of powers provision in the Constitution. He has backed off that position since lawmakers on Thursday approved a language change.

The bill, sponsored by Sen. Debra Plowman, R-Hampden, emerged from committee with a 7-5 vote along party lines.

Goodall said the proposal could stifle job development, a concern echoed by the Maine Renewable Energy Association. Dan Riley, representing MREA, testified that the proposal would prompt wind power opponents to pursue litigation and “prolong the already lengthy regulatory permitting process that the industry deals with on a regular basis.”

Goodall echoed the attorney general’s recommendation: If state agencies are not enforcing rules based on legislative intent, then the Legislature should deal with it.

“If there are problems with regulations, they should be addressed by the Legislature either through rule-making or changes to the regulations,” Goodall said.

Pistner pointed to court cases showing that judges often gave agency deference on ruling because the agency had the expertise in administering the regulation.

Pistner, in her testimony last year, said if courts were precluded from giving deference to an agency’s decisions or interpretations of statutes and rules, then the regulated would have “no incentive to be guided by an agency’s interpretation.”

“That, in turn, would give the regulated community every incentive to appeal all agency decisions and to litigate numerous issues, large and small,” she wrote, adding that the bill would “promote a substantial amount of litigation.”

Billings countered that the courts would still give deference to an agency’s statements of fact. It was its interpretation of rules that could be challenged, he said.

Billings said the change reflected Gov. Paul LePage’s philosophy, even if it could result in diminishing his administration’s power. The governor has political appointees to all state agencies. The appointees can can change the culture and goals of an agency.

“This bill gives (LePage’s) appointees less power than they have today,” Billings said.

An analysis provided by the Attorney General’s Office shows that Maine is one of 15 states with laws giving strong agency deference. Billings said LD 1546 would give Maine intermediate agency deference.

The Judiciary Committee vote means the bill will get kicked to the Senate for a floor vote later this month.

URL to article:  https://www.wind-watch.org/news/2012/02/11/maine-lawmakers-poised-to-diminish-agency-power-to-interpret-rules/