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Act 250 permitting reform fizzles out

A bill to tweak the Act 250 environmental permitting process died from lack of enthusiasm in the House Natural Resources Committee, after it passed the Senate with no enthusiasm from any side. But this bill’s death may mean more ambitious reforms to the permitting process will be introduced next session.

Sens. David Deen, D-Westminster, and Tony Klein, D-East Montpelier, introduced last year a bill that took what Deen called a “comprehensive look at permitting.” The bill the Senate passed in April, he said, “was stripped down to the point where the death it died, it deserved.”

Act 250, the Land Use and Development Act, was passed in 1970 to review larger development projects according to 10 criteria pertaining to the environment, aesthetics and local planning goals. It is administered through nine district commissions, and their decisions can be appealed to the Environmental Court.

The bill, S.28, contained two major provisions. One would clarify language about who is eligible for party status in Act 250 permitting hearings, expanding eligibility in a way that environmentalists praised.

The other major provision would initiate a four-year experiment in three of the state’s nine districts, in which the district commissions would be empowered to make their process “on-the-record” for those cases likely to be appealed. Currently, any appeals of district commission decisions are heard “de novo” at the Environmental Court, which means the entire process starts again. With on-the-record district commission hearings, the Environmental Court would generally just review evidence presented at the commission and rule on questions of law. The Vermont Chamber of Commerce and Lake Champlain Chamber of Commerce supported on-the-record review as a way to reduce the cost of appeals.

While nobody professed to be happy with the bill as it passed the Senate, both environmental groups like the Conservation Law Foundation and Vermont Natural Resources Council and the business groups saw it as a tenuous basis for a compromise and were willing to continue the discussion in the House.

S.28 next went to the House Natural Resources and Energy Committee. There, the committee focused on the on-the-record review provision. Chair Tony Klein, pointing out that only nine district commission decisions had been appealed in the last three years, said the committee was not convinced that there was a problem to be solved.

The committee was also unimpressed with the proposed solution, said Klein. “What we heard big-time, overriding, which is why I believe the bill just ran out of gas, was that everybody, 100 percent, no matter what side of the issue they were on, [said the district commission] process works really well. It’s accessible to the public, it’s not costly, it’s easy to deal with. The solution that we were told for putting permit appeals on record at the Environmental Court was to change how the district commissions operated. You’d have to put them on record. We scratched our heads and said, ‘Wait a minute. You just told us that it works fantastic. But the solution is changing how they operate.’ That was a non-starter. That made no sense whatsoever.”

Chris Recchia, deputy secretary of the Agency of Natural Resources, looks at it differently. He was working on behalf of the administration to pass the bill. Recchia said that only 10 percent of district commission decisions are appealed, and the on-the-record review would only affect those cases. “We were trying to protect the district commission existing process for 90 percent of the cases and trying to tweak the last 10 percent so it would serve well on appeal through the court.”

The committee took testimony until they ran out of witnesses, Klein said, but lost interest in pursuing the bill. They never held a vote on the bill.

After the House committee dropped the bill, an April 24 Environmental Court decision took away much of the incentive for environmental groups to support the bill, anyway. Environmental Judge Thomas Walsh, in In re Bennington Wal-Mart Demolition/Construction Permit, overruled the Bennington District Environmental Commission, which had denied party status to VNRC and Citizens for a Greater Bennington. In the decision, Walsh appeared to reverse thinking about party status from an earlier Environmental Court decision, In re Pion Sand & Gravel Pit, which had led environmentalists to think the legislature needed to expand the party status definition in statute.

Jamey Fidel, VNRC’s general counsel, was pleased with the decision. “Judge Walsh clarified that party status should be accessible to citizens,” Fidel said.

Klein said that no one on his committee knew the court case was pending, at the time they were discussing S.28.

Like Deen, Klein pointed to a need for more comprehensive permitting reform than S.28 offered. Klein said the bill he introduced last year – which had support of the environmental community – would simplify permitting by creating “one-stop shopping,” a single board where all state environmental permits for a proposed development would be issued.

Recchia indicated that the administration still wishes to pursue permitting reform, and he left the door open for more comprehensive reform next session. “It was kind of a learning exercise in trying to make improvements to the permit process. We know that we’ve never been able to undertake the big changes that people envision when they think of permit improvement… People don’t want to just do one little piece, but it’s a huge task to do a whole thing… We’ll come back next year and think about it. I think the discussion was well served in giving us some additional information on how to proceed.”

While the Legislature has not created any study committee for permit reform, the administration may set up its own summer process, according to Recchia. “We know who the people are who are interested in participating, and we’ll invite them back to the table and see if we can craft a compromise.”