Earlier this month the Shumlin Administration announced that it was beginning to evaluate the environmental permitting process in Vermont and was looking for public comments on ways to improve the system. The Chair of the Vermont Natural Resources Board (and our former law partner) Ron Shems is leading the team considering potential revisions, working together with Agency of Natural Resources (ANR) Secretary Deb Markowitz.
According to recent news articles, the Administration’s focus is on streamlining the process, not changing any substantive criteria, and they are evaluating the full suite of permitting processes in the state, from local/municipal zoning, to state Act 250 land use permits, to permits issued directly by ANR/DEC (such as wastewater, storm water, and wetlands permits).
I recently participated in a focus group of environmental attorneys in the state to discuss our perspective on the permitting process with state officials. Questions presented for discussion during the attorney focus group in the memo from the Administration included:
- How can each permit process best assure predictability and timely responses;
- Should the process be the same for a routine environmental permit like residential wastewater, as it is for a more complex permit, like an Act 250 or other permit(s) for a complex project?
- How can each permit process best assure transparency and citizen input?
- What permit processes can be consolidated?
- How can duplication in the permit process be avoided? and
- How can expenses of the permit process be lowered?
As one might expect with a room full of attorneys, there were varying perspectives on these issues from members of the bar that primarily represent developers in the permitting process and those that primarily represent opponent groups. But, overall, the message I heard was fairly consistent: the system is not broken, but it could use some procedural restructuring to make things more efficient and transparent for all of the various parties participating in permit proceedings.
Much of the discussion focused on the appeals process before the Environmental Division of the Superior Court (previously known as the Vermont Environmental Court). It seemed to me that there was a general consensus in the room that the the Environmental Division does not currently have the resources it needs to quickly process its very full case load, which results in long lead times for trials and even longer periods waiting for decisions after trial. At the same time, folks recognized that providing additional resources for the Environmental Division was not necessarily a viable option given state budgeting constraints. There were a number of interesting suggestions on how to address this problem, including potentially using members of the environmental bar as court-appointed “masters” in certain smaller environmental appeals, in order to reduce the number of matters the two environmental judges have primary responsibility for right now (presumably a master’s recommendations for findings and conclusions would still be subject to review and approval from the Environmental Division judges, but it could help with moving some of the time consuming fact-finding obligations off the judges’ plates).
The group also discussed how to address the duplication of effort and significant expenditure of resources that occurs for larger projects that must go through both municipal zoning review and Act 250 review, and then often have to repeat the exact same case a third time on appeal at the Environmental Division. In my view, trying the same case three times before three separate bodies is incredibly inefficient (and extremely costly for everyone involved), and seems particularly unnecessary when it’s clear that the project is ultimately going to get appealed for a full trial at the Environmental Division regardless of which party wins below. In light of the current situation I think it makes perfect sense to consider providing an opportunity for major cases to petition for initial review before the Environmental Division, thereby consolidating three proceedings into just one or two. Municipal review, and local control, obviously remains very important, but there are some reasonable ways to reduce District Commission review under Act 250 in these larger contentious cases without impacting the substantive criteria.
The Administration is conducting similar focus groups with other professionals and individuals involved in the environmental permitting process, including environmental advocacy organizations, developers, and engineers/consultants. We expect that the Administration will provide a summary of the public comments it received some time this fall, which may be accompanied by, or followed shortly by, specific recommendations for improvements to be advanced in the legislature this winter.
Update: an overview of the Natural Resources Board’s environmental permitting system evaluation and minutes from all of the stakeholder meetings are now available on the Natural Resources Board website.
