The Vermont Senate Natural Resources Committee passed a bill out of committee this week that would bring some changes to the Environmental Division of the Vermont Superior Court and to the appeal process for various types of environmental and land use permits, including Act 250 permits and permits issued by the Agency of Natural Resources (ANR).  Other elements of the bill would legislatively override recent Environmental Court precedent regarding party status in Act 250 proceedings and direct the Natural Resources Board (NRB) to report to the legislature on how Act 250 can better address several of the most intractable environmental and land use issues facing the state: anthropogenic climate change; allowing rural and agricultural areas to remain open and available for agricultural and forest land; and handling the cumulative effects of development.

This bill grew out of the NRB and ANR’s joint report to the legislature, which was developed, in part, through a series of focus group meetings with environmental and land use stakeholders and public meetings.  The main elements of the bill that the Senate Natural Resources Committee passed this week follow.

1.      Add a magistrate to the Environmental Court

• The magistrate would be a full-time employee, nominated, appointed, confirmed, and retained in the same manner as a superior court judge, but compensated as a magistrate in any other state court.
• Magistrate Powers and Duties:
  • Case management
  • Discovery process management
  • Decide procedural issues
  • Decide whether appeals should be consolidated or coordinated
  • Decide whether to refer matters to Alternative Dispute Resolution (ADR)
  • Conduct ADR
  • Issue recommended decisions on the merits of any matter to an Environmental Court judge (all parties to the matter would have the opportunity to comment on the recommended decisions before the judge makes a final decision)
  • Issue final decisions on the merits of relatively simple matters deemed non-significant in terms of precedential effect (a judge will determine if a matter meets these criteria)

2.      Codify ethical standards for Act 250 district commissioners.

• The ethical standards include a one-year moratorium on former district commissioners preventing them from advocating before their own former district commissions for pecuniary gain and from advocating, for pecuniary gain, before any public body, including the legislature, regarding any matter that they had substantive involvement with while on the district commission

3.      Act 250 Party Status Change.

• Ease the requirements to establish party status in Act 250 cases so that a person seeking party status must initially merely allege a “particularized interest protected by [Act 250] that may be attributable to a proposed development or subdivision.”  If the allegations are challenged, the party must prove only a “reasonable possibility of injury to a particularized interest” due to the proposed project in order to overcome a challenge to party status.
• This change is intended to relieve the perceived burdens to establishing Act 250 party status that were set out in the Environmental Court’s July 2010 decision In re Pion Sand & Gravel Pit, Docket No. 245-12-09 Vtec (July 2, 2010).

4.      Pilot Project to Test Use of Record Review of Act 250 Decisions through July 2016.

• Only applies to Districts 1, 4, and 5.
• Decision to hold on-the-record hearings will be made after a prehearing conference to consider the issue.
• Criteria for the decision to hold on-the-record hearings are:
  • whether the proposed project is likely to be contested and appealed
  • whether on-the-record hearings would likely save cost and time
  • whether on-the-record hearings would assure complete information and argument submitted to the district commission
  • whether on-the record hearings will unnecessarily burden parties
  • whether on-the-record hearings will significantly deter citizen participation or pro se party participation
• The district commissions must provide video recording of on-the-record hearings.
• On appeal to the Environmental Court, the appellant has the burden to demonstrate that the district commission committed reversible error.
• The appellant may not raise any objections that were not raised at the district commission in the underlying hearings.
• The standard of review for factual findings is that the district commission’s findings will be conclusive as long as they are supported by substantial record evidence.
• The standard of review for other district commission decisions and conclusions is the “arbitrary, capricious, abuse of discretion, or otherwise not in accordance with the law” standard.

5.      ANR Report to the Legislature Regarding Record Review of ANR Decisions by 2013.

• The report would:
  • document the number of appeals of ANR decisions that have occurred in the preceding three years and the amount of staff time needed for those appeals;
  • state the changes needed within ANR to provide for on-the-record review of its decisions; and
  • recommend the appropriate standards of review of ANR decisions in any appeal, whether de novo or on-the-record, and detail any changes needed at ANR to make those standards of review appropriate.   

   

6.      NRB Report to the Legislature Regarding Act 250 Effectiveness on Pressing Issues by 2013. 

• The report would make recommendations on how Act 250 could better address:
  • anthropogenic climate change;
  • preservation of “Vermont’s settlement pattern,” which allegedly involves “concentrated settlements surrounded by rural countryside and prevention of sprawl and the related loss of agricultural soils and forestland”; and
  • the “cumulative impacts of development over time.”

Now that the bill has left Senate Natural Resources, it must move to the Rules Committee for approval to continue.  Likely next steps would be to the Senate Appropriations Committee before reaching the Senate floor.  The House has not yet considered this bill; therefore, if it passes the Senate, the House may take it up in a committee.