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