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Public Versus Polluters (Round Two) 

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* updated below *

A key House committee voted unanimously this week in support of legislation that would give the public a chance to weigh in on environmental enforcement actions handed down by state regulators.

The House Natural Resources and Energy Committee voted 9-0 in favor of the bill on Thursday. The bill goes before the full House on Tuesday.

The bill, as outlined in this week's "Fair Game," is in response to a ruling by the U.S. Environmental Protection Agency that said Vermont wasn't doing enough to comply with key provisions of the federal Clean Water Act. Unlike most states As is the case with 45 other states, Vermont has been given the authority to enforce the Clean Water Act.

Business interests had lined up against the bill out of concern that extending this public participation process beyond the federal permits would "chill" economic development. Those business concerns were being voiced the loudest by two former top environmental officials under the previous administration.

A revised bill was introduced into committee Tuesday and voted out yesterday morning. The revised version narrows the ability to intervene from the original open-ended standard to what is called a "permissive standard," which means a judge will determine if they have standing. The bill also does not allow for interveners to appeal final decisions of the state environmental court.

A key item the business groups opposed — extending the public participation to all state permits as well as the federal CWA permits — remains intact. House Natural Resources and Energy chairman Tony Klein (D-East Montpelier) said he had no interest in narrowing the scope of the bill.

"I'm happy with what came out of the House," said David Mears, commissioner of the Department of Environmental Conservation. "It meets a couple of key policy ideas that were important to me and one of the most important pragmatic pieces for me, which is to satisfy the EPA concerns. The other key issue for me is that I think it's a good idea to have a transparent enforcement process."

Mears said he also believes that allowing for public commenting on all enforcement actions will make DEC's work more efficient because all environmental enforcement actions will follow the same guidelines. Having a tiered approach to enforcement would make it more difficult, and costly, to manage, not to mention more confusing for permit holders.

The changes also seemed to please the Lake Champlain Regional Chamber of Commerce, which had opposed parts of the legislation it saw as being too broadly applied. In a series of emails — which you can download below — LCRCC executive director Tom Torti pressed administration officials to change the bill. Torti was also upset that the business community had not been given a heads up on the legislation.

The LRCCC, in its weekly legislative memo, touted a few changes that it helped bring about — including a limit on appeals and the more permissive standard for allowing interveners.

A new opponent has emerged as of today, however. The Vermont League of Cities and Towns is urging its members to contact lawmakers.

"Local officials should contact their legislators to urge that the permissive intervention be limited to federally delegated programs and not be extended to all state environmental programs and Act 250," wrote VLCT legislative director Karen Horn in the league's weekly legislative report. "Likewise, the definition of “aggrieved party” and the moving of environmental ticketing to environmental court from the judicial bureau should be questioned."

These concerns mirror, to a large extent, what the business community had raised in its complaints during the past few weeks.

Horn said that while the VLCT had sat in on hearings regarding the bill, it had had only informal discussions with members of the committee and the Agency of Natural Resources.

"It came as no surprise to anyone that we would have concerns," Horn told Seven Days in an email.

It did, however, seem to surprise the Conservation Law Foundation. CLF had brought the original complaint to the EPA that led to the need for this legislation.

"It's definitely a compromise, and the area that still gives us concern are the attempts to continually narrow who can participate in the process," said Anthony Iarrapino, a CLF attorney.

"Our opponents are trying to put as many hoops in the way of citizens to jump through before they would get a hearing before the judge," he continued. "CLF and other groups that are representing the public voice are trying to have the fewest hoops to jump through as possible, and hoops you wouldn't need a lawyer to get through. We think it's essential to keep the least number of barriers possible for the public to participate and to keep this process from continuing to be the closed-door process that violators have enjoyed in Vermont up until now."

Download the emails: Download H.258 emails


*update - Monday, March 21 *

House Energy and Natural Resources Committee Chairman Tony Klein (D-East Montpelier) is taking issue with VLCT's Karen Horn's complaints about H. 258, and her claim that she had talked with members of the committee before its passage. Klein said she had not spoken to him — one of the lead sponsors — about the bill. Klein said he was surprised to read of the VLCT's opposition to the bill. "I, for one, don't appreciate being ambushed," said Klein. He said he had reached out to VLCT during hearings on the bill.

"I asked her directly on the record whether she or the League had anything to say, add or comment upon. She chose not to say anything. I had no idea they had any problems with the bill until I read their newsletter. I felt totally blind sided by their position. I called her late Friday when I heard about their position and requested she return to the state house to explain in person to me her less than forthright behavior. As a chair and legislator I take pride in being very open and accessible to all no matter what side of any issue anybody is on. For Karen Horn to suggest that she had informal discussions with some of my committee members and to suggest that may be sufficient input doesn't pass the straight face test," wrote Klein in an email to Seven Days. "They have chosen to side with law violators and exclude Vermonters from participating in hearings on appropriate penalties for those folks who have broken the law. I don't think our towns and municipalities should be very happy or proud of this type of representation. I would hope in the future that the League chooses to participate in our open and accessible to everyone, process."

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Shay Totten

Shay Totten

Shay Totten wrote "Fair Game," a weekly political column, from April 2008-December 2011.

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