March 26, 2012
Maine

Some Republicans, paper companies oppose bill diminishing agency power to interpret rules

By Steve Mistler, Staff Writer, Sun Journal, www.sunjournal.com 26 March 2012

AUGUSTA – A Republican-initiated bill that would allow judges to give less weight to decisions made by state agencies is running into new opposition: Republicans.

Current Maine law requires justices to give strong deference to departmental rulings, when challenged in court, on matters such as development permits or enforcement of insurance laws. LD 1546 would diminish the finality of those decisions by making it easier to appeal or challenge the rulings.

The measure is sponsored by Sen. Debra Plowman, R-Hampden, and supported by the LePage administration. Both argue that the bill guards against institutional bias within agencies where departmental culture can lead to rulings that contradict the Legislature’s initial reason for the regulation.

But a handful of Republicans in the Senate are worried the bill could have adverse impacts on businesses, in particular paper companies. That’s because some fear the bill could make it easier for conservation and environmental groups to challenge departmental rulings on matters that benefit businesses, such as wastewater licenses or development permits.

The same argument came up last year during the early days of LD 1, Gov. Paul LePage’s regulatory reform bill. Lawmakers on the LD 1 panel eventually removed the agency deference proposal because some businesses said it could create uncertainty in permitting and hold up developments.

Sen. Thomas Saviello, R-Wilton, is among the Republicans in the Senate opposing the change in the deference standard. He said Monday that giving judges more latitude to interpret department rules could be “a doubled-edged sword.”

“The group that’s applied for the license that’s been approved by the department could suddenly have to satisfy the courts,” Saviello said. “That can delay a project.”

Saviello said that could be problematic for the paper industry, which often operates in a gray area when negotiating licenses. If a company successfully negotiates a license with a state agency, it could be more easily challenged by an interest group if LD 1546 is enacted.

The bill had not encountered opposition from the industry until recently. Saviello said the “industry fell asleep at the switch” after the deference proposal was spiked last year.

The industry isn’t snoozing any longer. Representatives from Verso Paper Corp. met with the LePage administration on March 12 to discuss the bill.

Representatives from Verso did not return phone calls or emails seeking comment.

Plowman, the bill sponsor, said Monday that the industry opposition was overstated in her caucus. She acknowledged that some Republicans were lining up to vote against it.

Saviello, who used to work in the paper industry, said Republicans in districts where paper mills are located are concerned about the bill.

The GOP division could jeopardize a proposal that Plowman says is designed to bring Maine’s deference standard in line with the majority of states. Democrats oppose the bill, which means it will only take a half-dozen Republicans to help kill it.

The GOP opposition may explain why the bill has been tabled in the Senate since the Judiciary Committee voted mostly along party lines to approve it.

Dan Billings, LePage’s chief legal counsel, has said the proposal 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.

Sen. Seth Goodall, D-Richmond, has been leading the Democratic opposition. He said agencies that deal with land-use issues 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 last month.

Goodall has acknowledged arguments that state agencies sometimes don’t enforce rules based on legislative intent. However, he said, if that happens, it should be the Legislature that deals with it, not the courts.

The administration and supporters have countered that less agency deference could make rule and permitting less subject to the political whims of the governor’s office. The governor has political appointees to all state agencies and those appointees can change the culture and goals of an agency.

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

URL to article:  https://www.wind-watch.org/news/2012/03/26/some-republicans-paper-companies-oppose-bill-diminishing-agency-power-to-interpret-rules/