Red Tape

by Gary Franklin
Attorney at Law

A Primer on Permit Reform

On January 31, 2005, Gov. JamesDouglas' permit reform bill will take effect, dramatically impacting the processing of projects subject to Vermont's regulatory programs.

The primary impacts of the new law are to: 1) consolidate all permit appeals from local boards administering zoning and subdivision bylaws, district environmental commissions administering Act 250, and other state agencies administering various permit programs into an expanded Environmental Court; 2) standardize who may participate as a party to a permit proceeding and appeals to the Environmental Court; 3) define the parties and issues at interest earlier in the process; and 4) create a more legalistic approach to the permitting process.

The new law expands the jurisdiction of the Environmental Court which currently hears appeals from the municipal zoning and subdivision decisions to cover appeals from the actions of virtually every agency and body that currently issues environmental permits and decisions.

To handle its expanded jurisdiction, the Environmental Court will add a second judge, a court manager, two full-time law clerks (whereas now there is only a part-time clerk), a case manager and two docket clerks/courtroom managers.

New rules of practice for Environmental Court proceedings have been proposed. These rules will likely provide for: the coordination of multiple proceedings before the Environmental Court arising from the same project; management of discovery; the admission of evidence; and the use of prefiled testimony to streamline the hearing process.

In conjunction with the consolidated appeal process, the law eliminates the Water Resources Board, which hears appeals from permitting decisions by the Agency of Natural Resources, and the Environmental Board, which hears appeals from the District Environmental commissions under Act 250. Those appeals will be heard by the Environmental Court; however, prior decisions of the Water Resources Board and Environmental Board will maintain their precedential value before the Environmental Court.

The Water Resources Board and the Environmental Board will be consolidated into a new body, the Natural Resources Board, made up of nine members, divided between two panels: the Land Use Panel and the Water Resources Panel.

The Land Use Panel will be responsible for adopting substantive rules concerning land-use regulation under Act 250, and will manage the process by which land-use permits are issued. It will also be able to initiate enforcement actions under Act 250 and participate as a party in matters before the Environmental Court that relate to land-use permits.

The Water Resources Panel will maintain responsibility for rulemaking regarding the classification of waters within the state, water quality standards, management of lakes and ponds, and identification and protection of wetlands. The Water Resources Board may participate as a party in matters before the Environmental Court that relate to water resource issues.

In the area of party status, the new law requires, with limited exceptions, interested parties to participate at the initial stages of review to preserve the right to seek an appeal of a permit decision. Persons other than the applicant and affected regulatory bodies that seek to obtain party status must demonstrate a particularized interest in the project under the governing criteria. Participation will be limited to those criteria on which a person has demonstrated such interest.

As a practical matter, because appeals will be limited to issues raised and parties participating at the permitting level, battles over party status and review of the permit application by proponents and opponents for completeness, accuracy and pitfalls will likely occur earlier in the process than they do under the current law. The statute also creates a voluntary "scoping process." It provides an applicant the opportunity to confer with, for example, the Agency of Natural Resources, the applicable District Coordinator under Act 250, and a representative of the local permitting authority to identify potential issues, common concerns and overlapping jurisdiction at the beginning of the review process. The intent of such a scoping process is to allow the applicant to develop a realistic schedule and coordinate various permit reviews.

Tactically, permit reform will emphasize the need for legal expertise. Unlike proceedings before the Environmental or Water Resources boards under the prior law, proceedings before the Environmental Court are governed by the Vermont Rules of Civil Procedure and are subject to all the rules of discovery and motion practice that exist in a typical civil lawsuit. This is a remarkable change from the administrative practice on appeals that existed under the prior law.

Although the Environmental Board and Water Resources Board are highly specialized in their areas of jurisdiction, with highly specialized staff, the new Environmental Court, with only two judges and limited staff covering a broad array of environmental law and regulations, will require significant education on a case-by-case basis. Consequently, there will be a greater emphasis on litigation tactics and putting in place a strong team of legal experts and consultants.

On the flip side, having all environmental appeals in one system should result in greater uniformity of process as well as enhanced opportunities to manage the appeals of several ongoing permits resulting from the same project. Participants in the regulatory process may also have greater confidence in the court system, as it is generally thought of as a system beyond the reach of politics.

Gary Franklin is a partner with Eggleston & Cramer, a general business law firm with offices in Burlington and Montpelier. His practice focuses on the areas of commercial litigation, administrative law, environmental and land-use law, and employment law.