Maine Senate delivers 1-2 punch to agency deference bill 

AUGUSTA – A bill that would allow judges to give less legal weight to decisions made by state agencies has failed two votes in the Maine Senate.

The bill, LD 1546, suffered a 24-7 setback last week. On Monday the margin of defeat was narrowed to 18-16, but the bill still failed enactment.

The votes reflect recent concerns among some lawmakers and paper companies about a proposal that would diminish the finality of agency rulings on development and environmental permitting or the enforcement of insurance laws.

Current Maine law requires justices to give strong deference to departmental rulings when challenged in court. LD 1546 would lessen that deference if a ruling was challenged in court.

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.

A handful of Republicans in the Senate have worried that the bill could have adverse impacts on businesses, in particular paper companies, because conservation and environmental groups could more easily 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.

Some business groups worried last year that the bill would slow permitting.

Sen. Thomas Saviello, R-Wilton, led the Republican opposition. He said the bill 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 flown under the radar after it was jettisoned from the LD 1 package last year. However, it was the subject of intense lobbying activity. The paper industry, wind developers and energy companies originally opposed the bill.

Representatives from Verso Paper Corp. met with the LePage administration on March 12 to discuss the bill.

Several insurance companies have supported it in part due to a previous dispute with the Maine Bureau of Insurance, which, some have argued, has issued decisions that don’t align with the legislative intent of some rules.

Democrats oppose the bill. On Monday five Republicans, including Saviello and Sen. Lois Snowe-Mello, R-Poland, voted against the measure.

The LePage administration has said the proposal would give those people appealing agency decisions a better chance at a fair court ruling.

Opponents, meanwhile, say the bill could lead to more lawsuits that could ultimately halt projects such as wind farms and other developments. Opponents have conceded that state agencies sometimes don’t always enforce rules based on legislative intent. However, they say the way to deal with that is legislative rule-making, not the courts.

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.

Monday’s vote in the Senate was not preceded by any floor debate. It deals a significant blow to the bill. However, it’s not dead yet. LD 1546 must first face a vote in the House.