For the past year, at the direction of Governor Shumlin and with the support of the General Assembly, the Natural Resources Board (NRB) and the Agency of Natural Resources (ANR) have been engaged in reviewing the state and municipal environmental permitting processes in Vermont and developing suggestions for improving these processes. The review has included focus group meetings and public meetings to elicit feedback regarding the strengths and weaknesses of the current permit systems, as well as ideas for changes that could improve the permit systems. The Natural Resource Board’s website has devoted a page to this process, which includes a list of the focus group and public meetings held and links to comments received. Recently, as a culmination of this initial review and public outreach effort, the NRB and ANR issued a joint report to the General Assembly.
The legislative report shows that the NRB and ANR examined several distinct areas of environmental permitting in Vermont: state Act 250 permits, which are administered by the NRB; state air, water, waste, and other permits that are administered by ANR; and municipal land use permits, which are regulated and administered by individual towns and cities with minimal state statutory guidance. These various permit processes are quite different in terms of the initial permit application and review processes, but they follow a common path on appeal, which is to undergo de novo review at the Vermont Superior Court, Environmental Division (Environmental Court). (Appeals of land use or zoning permits are on-the-record appeals only in those municipalities that have adopted the municipal administrative procedures act and follow a development review board process. According to the report, only ten municipalities have done so.) The report identifies the appeal process as a main area of focus because, although there is a relatively low percentage of appeals, the appeal process is seen as taking the greatest amount of resources—including time—for permit applicants, permit opponents, and the state.
The report explores two possible approaches to improving the appeal process, but stops short of specifically recommending either of the two approaches as the best way forward. The changes contemplated are either (1) adjusting the current Environmental Court process, or (2) creating a new quasi-judicial environmental review board. While the report avoids making any explicit statements to this effect, the role and duties that the environmental review board is contemplated to undertake would make it possible to dismantle both the Environmental Court and the NRB itself.
According to the report, public comments and focus group feedback indicate that the current Environmental Court process and proceedings are difficult to navigate for parties who are not represented by legal counsel, and that it takes too long to receive a final decision from the court. To address these issues, the first proposed solution would make certain changes to the current framework of the Environmental Court, including:
- addition of hearing officers or magistrates to assist the two Environmental Court judges
- limitations on the scope or extent of discovery
- encouraging the use of prefiled testimony and exhibits instead of relying entirely on live hearings for the submission of evidence
- creation of a public advocate to serve two possible roles: (1) represent the public interest in environmental matters, similar to the role of the Department of Public Service in utility matters; (2) serve as a low-cost or no-cost provider of legal assistance for unrepresented parties, similar to Legal Aid
- use Alternative Dispute Resolution (ADR) more effectively by having a case manager, hearing officer, or judge evaluate cases and decide when ADR is likely to assist in settling matters; using other forms of ADR aside from mediation
The second proposed approach would scrap the Environmental Court entirely, and replace that system with a new permit appeal process before a professional review board (Board). As described in the legislative report, the Board would be similar to the Public Service Board, which regulates Vermont’s utilities and energy producers. The report describes the Board as a three-member panel with two alternate members, all of whom would be selected through a process like that used for Public Service Board members or Superior Court judges, with appointment by the governor and confirmation by the Senate. As with the Public Service Board, the Board members would serve fixed terms with staggered term periods to provide a balance between continuity and new appointments. The report proposes that the Board would have essentially the same appellate jurisdiction as the Environmental Court, original jurisdiction over enforcement matters, and an additional role in that the Board would have original jurisdiction over the initial permit review for complex projects of great public interest. However, instead of operating like the Environmental Court, the report recommends that the Board operate in a manner similar to the Act 250 District Commissions in terms of the discovery process, use of prefiled testimony, and the administration of hearings. The report states that the District Commissions were widely recognized as effective venues for environmental decisions and were accessible to the public and unrepresented parties.
Because the Board’s jurisdiction would encompass all areas that the Environmental Court currently covers, and would have even broader original jurisdiction over some initial permit proceedings, there would no longer be a role for a separate Environmental Court. The report also states that the Board could take over the rulemaking and support duties that the Land Use Panel of the NRB currently performs for Act 250 matters. Further, the report recommends moving the rulemaking responsibilities of the NRB’s Water Resources Board to ANR. Based on these recommendations, it seems that creation of the Board would also allow for dissolution of the NRB, as all of its current roles and responsibilities would be transferred to the Board and ANR.
One further major change to the permit appeal process, which the report indicates could be implemented in either the Environmental Court or the Board model, is to change from a de novo review standard to an on-the-record review standard in more of the appeals. The Act 250 permit process seems largely equipped to handle this change at the present time giventhe manner in which the District Commissions currently operate. However, ANR would have to make substantial changes to its permit application review and approval procedures in order to allow for record review of its permit decisions. Similarly, most municipalities would need to adopt uniform administrative procedures, such as the Municipal Administrative Procedures Act, to ensure that their decisionmakers were fully trained and well-advised in proper procedural rules and to ensure that a proper record is created in order to allow for record review of their land use decisions.
In addition to these possible changes to the permit appeal processes, several other changes to the environmental permitting framework are discussed in the report. These include, as indicated above, transferring the water quality rulemaking responsibility from the NRB’s Water Resources Panel to ANR. Other ideas discussed include giving greater weight to ANR-issued permits and municipal permits in satisfying Act 250 criteria; increasing the use of professional certification to satisfy the applicant’s burden for ANR permits; increasing the use of on-line forms and permit application submissions for ANR permits; increasing the scope of public notice of ANR permit applications and draft permits; standardizing the notice and comment periods across all ANR permits; and increasing public participation in the ANR permit process prior to the time that ANR issues a draft permit.
Most of the possible changes described above would require legislative action, so readers interested in these issues should watch the current session for more developments. Governor Shumlin specifically requested the General Assembly to take action to implement “on the record” review for Act 250 appeals in his recent budget address —indicating a priority for action on that item.
The NRB is accepting comments on the legislative report through its web page dedicated to this project.
