Regulatory reform | Overhauling BEP and LURC volunteer boards will improve Maine's business climate
Partner, Preti Flaherty Beliveau & Pachios LLP, Portland
As a practicing attorney and lobbyist who has worked closely with the past six governors, I have a unique view of the working relationship between governors and lawyers, and have seen the various approaches that chief executives have brought to the regulatory environment of our state. Based upon this perspective, I believe there are real opportunities for Governor-elect Paul LePage to move Maine’s economy forward by looking carefully at ways businesses are regulated.
A long-neglected area that I hope the LePage administration will pay particular attention to in this regard is the role of citizen regulatory boards in reviewing/approving proposed new business projects.
Specifically, I hope that his administration will consider substantial reforms of the Land Use Regulation Commission and the Board of Environmental Protection. Both LURC and BEP approve or deny permitting requests for important development projects around the state. Historically, once either of these entities assumes jurisdiction over a permit application, project timelines expand significantly and project costs increase dramatically — without concomitant improvement of the project from an environmental perspective.
Project delays often impact financing and needlessly subject the project to market condition fluctuations — it is the unusual large project developer and financier that will wait for an extended and ambiguous regulatory process to be completed in Maine when they can have greater certainty in another state.
LURC, under the organizational umbrella of the Department of Conservation, was established in 1969 and is the state agency responsible for zoning, planning, development and regulation of the 10.5 million acres (about half of the state’s land area) in unorganized towns and plantations. It is a seven-member lay volunteer citizen board whose members are selected by the governor and confirmed by the Senate. A particularly troubling regulation in the LURC requirements is the “adjacency rule,” which has been interpreted to mean that any new development be within one road mile of an existing compatible development, which prohibits potentially valuable developments in vast areas of the Unorganized Territory.
The BEP is a 10-member volunteer citizen board that has been in existence in some form in Maine since the 1960s. The BEP is charged with, among other things, making decisions on certain types of permit applications, hearing appeals of the Department of Environmental Protection commissioner’s licensing and enforcement actions and promulgating DEP’s rules. Members of the BEP are appointed by the governor and confirmed by the Senate. DEP regulations allow the BEP to assume jurisdiction over projects that are of “significant public interest.” Although this term is defined in DEP regulation, the application of that definition by both the department and the BEP has been wildly inconsistent over the years. There is no discernable pattern as to whether the DEP or the BEP will manage a license application — it is a roll of the dice.
Other northern New England states have substantially more business-friendly models for permit review. In New Hampshire, Vermont and Massachusetts, for example, all permits are issued directly by the regulatory body itself, not by a lay person citizen board. Even appeals of those permit decisions are made to an administrative law judge (in Massachusetts), a matter-specific council appointed from areas of expertise (New Hampshire) or to the Superior Court’s Environmental Division (Vermont).
Many times a project’s demise can be attributed to the procedural hurdles that were placed by opponents seeking not to improve the project but, rather, simply to make it go away. A single well-funded, NIMBY-oriented opponent, despite being a minority voice railing against a project, can utilize the citizen board forum and the current regulatory structure in a fashion that will stymie technically sound and environmentally compliant development.
The staff of the Maine DEP and LURC are professionals, steeped in the subject matter that they regulate. Their expertise should be relied upon in evaluating project applications, and decisions on applications should be made at the DEP commissioner and DOC commissioner levels, not by lay citizen boards. These boards are generally populated by well-meaning and hard-working volunteers, but they are just that — volunteers. The complexity of the projects and the regulations that govern these projects today deserve full-time professional evaluation, not part-time citizen review.
Projects that have died on the vine due to procedural hurdles and others like them that may not have even sought approval could have afforded crucial growth opportunities for Maine’s economy. Throughout my career, I’ve seen how these processes can prevent a governor from achieving his administration’s goals of growing the economy. Hopefully, as Governor-elect LePage builds his new administration and details its policies, he will look to the structures and procedures successfully employed by our neighboring states for examples of managing environmental decision-making that will significantly improve and streamline regulatory review.
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