Vermont Bar Journal, Vol. 40, No. 2 Fall 2015, Vol 41, No. 3 - Page 16

by Jon Anderson, Esq. S.123 Should Be Defeated In the last few years, various groups have supported a bill, currently designated as S.123, that would require appeals of permits issued by the Agency of Natural Resources to be resolved by the Environmental Division of the Superior Court based on an on-the-record review of a record created by ANR. The House Committee on Natural Resources and Energy held hearings on S.123 last year and the bill could move through the legislature in 2016. The Shumlin Administration and various business groups seem ready to support the bill, which is opposed by most lawyers and several environmental groups. As explained below, S.123 is a giant step backward and should be defeated. In 2004, the Legislature reorganized the environmental permit appeal process to improve its quality and to make it easier to understand and administer. Previously, complex charts were needed to explain the appeals process. Some permits were reviewed by the Environmental Board, some by the Water Resources Board, some by superior courts and some by the Environmental Court. Following permit reform, the Environmental Court now resolves most appeals, usually through de novo review. The Environmental Court can now manage the process so that all appeals concerning any project are heard in a single hearing. Generally, the change has worked well. Although advocates may disagree with individual decisions, the Environmental Court judges strive to resolve cases on their legal merits considering proper evidence and there are no longer rumors of ex parte conversations or improper political interference. Until 2004, the permit process was a hotly debated topic in many political races. Since 2004, the issue has rarely come up. Under the current system, ANR issues permits following whatever process it wants. The process can be procedurally defective since the Environmental Court eliminates the taint of procedural imperfections by conducting a de novo review.1 Developers usually bear the initial burden of presenting evidence to the Environmental Court supporting the issuance of ANR permits. In theory, the Environmental Court then resolves the case in favor of the party who presents the best case. In practice, the Environmental Court usually sides with ANR unless the court is given good reason not to do so. In any event, factual issues get a good airing before an experienced, legally trained, impartial decisionmaker. S.123’s proponents argue that the bill would reduce the time and expense of permitting by requiring evidence to be heard only once. Opponents worry about the concentration of power at ANR. On-the-record ANR decisions would be overturned only if they are unsupported by any evidence in the record. Public confidence in the process may also be affected if S.123 becomes law. In general, hearing officers and witnesses should not be in the same chain of command, as would be the case if S.123 is adopted. The Public Service Board and Public Service Department were separated in the late 1970s to address this very problem. Nor should the decision-makers be affected by ex parte communications or political pressure. Widely reported rumors of such problems led to the development of the current permit appeal system. Although S.123 is a bad bill that should be rejected, we can still improve the appeals process so that our government is as effective and efficient as possible. Here are some ideas that would address concerns of S.123 proponents without adopting the most objectionable aspects of on-the-re- cord review: 1. Self-executing discovery. Environmental Court rules could be written to provide that witness lists, expert reports, and the discoverable portions of expert witness files be provided automatically without requiring the time and expense associated with requesting such information, which is or should be supplied in almost every case. 2. Presentation order. Under current law, the applicant has the burden of proof in most cases. If an opponent lists an issue in its Statement of Questions (which the appealing party files early on in a case), the applicant bears the burden of presenting evidence on the issue. Supporters of S.123 point to situations in which a permit opponent puts the developer to the expense of presenting evidence on every issue and then the opponent does not present evidence on any issue. To address this concern, the Environmental Court rules could be adjusted to require the appeali