Rutland Herald Commentary

Douglas helps business bulldoze citizens

October 8, 2003

Under pressure from the Douglas administration, Vermont’s Environmental Board recently held public hearings on proposed rule changes. The changes are so legalistic that even businessmen who support them testified they would leave comments about specific details to the lawyers. To the average citizen, the rule changes might as well be in Latin.

In fact, the “citizen-friendly” component of the proposed new rule is in Latin. It is called “amicus curiae,” a new category of participation in Act 250 to replace “materially assisting parties.” The primary purpose of “amicus curiae” is to eliminate the Conservation Law Foundation from appealing Act 250 cases.

Unfortunately, “amicus curiae” could eliminate just about everyone who wants to have a say in a development proposed in their community. The rule does not specify what standards a citizen must meet in order to gain the privilege of speaking, and it gives full discretion to the board to deny citizens the right to participate.

All of the rule changes are citizen-unfriendly. The board proposes to change the basic rules for gaining “party status.” By adding the words “directly” and “and,” adjoiners and neighbors would have to prove their interests are directly affected in order to gain party status.

The Water Resources Board has established that to gain party status a neighbor must bring in an expert witness to prove that there is a hydrogeologic connection between their property and the opposing party’s property.

With these changes, neighbors seeking to participate in district commission cases might have to hire an aesthetics expert to testify their view is directly affected or a traffic expert to prove their neighborhood’s safety is at risk.

Faced with this kind of test, most citizens would probably seek legal counsel to ensure their interests are fully represented. Instead of the less formal district commission process that was originally intended, the new rules would make the district process even more complicated.

It is no wonder that the developers’ lawyers who testified at the recent hearings were like kids in a candy store. It is equally understandable that their clients cheered them on with overwhelming approval. Citizens watched in silent dismay.

Business lawyers argue that the new rules will make the process more predictable.

I predict that with these rules, the process will become more legalistic and expensive. Cases will begin with legal challenges to standing, some of which will get argued to higher courts until new case law has been established.

Citizens, who already find the process biased against them, will be intimidated by the cost of getting in the door. More natural areas will go unprotected because citizens will not be able to prove a direct property interest to bear habitat or bird nesting grounds. Poorly planned developments will be approved because nobody will argue to keep houses out of wetlands.

What we should be doing instead is evaluating how our complex regulatory system is working to protect the environment and human health. In Rutland County, we are investigating apparent high rates of cancer among children and are learning about numerous toxic sites. We are discovering our state has a piecemeal approach to regulation that fails to consider cumulative impacts and allows groundwater to be contaminated, as long as pollutants are below “standards.” We are looking at our basic right to safe drinking water and are finding that our state is failing to protect public and private water supplies.

Yes, we need to change the process, but not in the Douglas administration’s direction that is being championed by the lawyers for big business and is so clearly against the interests of the people of Vermont.

Annette Smith of Danby is executive director of Vermonters for a Clean Environment.