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Bernie Sanders

Polluters, Privacy and the Public Interest

Fair Game


Published March 16, 2011 at 10:50 a.m.

Fair Game is Seven Days’ weekly political column.

Guess who’s opposing a bill that would give citizens the ability to weigh in on state environmental-enforcement actions? Two ex-officials with the Vermont Agency of Natural Resources: Tom Torti, the former ANR secretary, and Warren Coleman, the agency’s former top lawyer.

Both served under former Gov. Jim Douglas. Torti is currently the president of the Lake Champlain Regional Chamber of Commerce; Coleman is a lobbyist with MacLean, Meehan & Rice, a go-to firm for major companies and developers in the state.

Why do they object to the proposed bill? It’ll send the wrong message to Vermont’s polluters, er, businesses: that Vermont is not friendly to development.

Last month, a couple of House lawmakers introduced a bill, H.258, in response to a U.S. Environmental Protection Agency ruling that found Vermont wasn’t adequately meeting its obligations under the federal Clean Water Act. That ruling was issued in response to a legal challenge by the Conservation Law Foundation. The CLF’s suit was prompted, in part, by damage done by Jay Peak Resort to waterways, including a pristine trout stream, during a major expansion project. The penalty imposed by the ANR, CLF claimed, was too lenient, and there was no public notice given to allow anyone to challenge the deal before it was settled.

The lead attorney on the CLF complaint was Vermont Law School professor David Mears, former director of the school’s environmental-law clinic. Mears is now the commissioner of the Vermont Department of Environmental Conservation (DEC), which is in charge of enforcing the state’s environmental laws, as well as the federal Clean Water Act.

Small world, eh?

The proposed legislation would inform citizens affected by polluters about any enforcement actions and allow them to comment upon those actions — and even challenge them in state environmental court. The bill would grant citizens, or public-interest groups 20 days in which to file comments or ask for a hearing before the environmental judge. That judge would have to OK their participation.

H.258 would also extend this more robust public participation to the state permitting process, including that for Act 250, Vermont’s land-use and development law.

Extending public participation in the state environmental-regulation process is what bothers Torti and Coleman.

Mears said most of the language in the proposed bill was negotiated between the EPA and DEC before he was appointed commissioner. “I have, however, worked to ensure that this legislation … is in the best interest of the Vermont public and does not represent a bill advancing CLF’s interests only,” Mears said.

Coleman and Torti declined to tell “Fair Game” on whose behalf they are lobbying. Torti said he had heard complaints from “real estate developers.” Coleman would only say that some of his firm’s clients, who had experience with permitting, were raising concerns. Some of MM&R’s top-flight clients include Omya, Cabot Creamery and Entergy Nuclear Vermont Yankee.

Both OMYA and Cabot have been accused of causing pollution problems — by citizen groups in their respective backyards — and of getting special treatment from the state.

“Fair Game” obtained a series of emails exchanged between Torti and top aides of Gov. Peter Shumlin.

Deb [Markowitz, current ANR secretary], Mears, etc. have been meeting with us ostensibly trying to make nice with the business community. Introducing a bill we hate and not telling us is pretty cheesy,” Torti wrote on February 23 to Shumlin’s secretary of civil and military affairs, Alex MacLean. Torti called the bill an “economic development nightmare.”

In a follow-up email to MacLean, Mears, Markowitz and Shumlin’s chief of staff, Bill Lofy, Torti wrote that he was “astounded that no one from your agency reached out to solicit our opinions or to let us know of your intent — before you introduced it.” Torti was especially upset because he received a heads up from CLF — “Not a group we normally hear from,” he noted.

Who else was copied on those emails? Developers Robert Miller and Ernie Pomerleau got several of them; Pomerleau Real Estate is one of MacLean, Meehan & Rice’s clients. Another recipient was Frank Cioffi of the Greater Burlington Industrial Corporation. Cioffi is a charter member of Democrats for Dubie and Democrats for Douglas.

The strategy and messaging worked with the pro-business, pro-jobs Shumlin administration. MacLean managed to slow down the bill, with assistance from House Speaker Shap Smith and Rep. Tony Klein (D-East Montpelier); the latter is cosponsor of H.258 and chairman of the House Natural Resources and Energy Committee.

After learning of the delay, Torti wrote to MacLean, “You are a wonderful person.” He even added a smiley-face emoticon. Aww.

The House will debate a new version of the legislation this week before it moves on to the Senate.

In an interview with “Fair Game,” Torti reiterated his belief that a bill inviting citizens to chime in on enforcement actions against environmental polluters would “chill” economic development.

“Most of the violations are technical in nature and not odious or egregious violations,” said Torti. “If a business can negotiate with the state in a show of good faith, and the outcome is predictable and certain, they can move on. If you don’t have that predictability, it makes it difficult to conduct business.”

Conversely, keeping the status quo would allow polluters to largely keep their violations secret until it is too late for citizens or public-interest groups to object. That’s the view of CLF attorney Anthony Iarrapino.

“The current process is so behind-closed-doors oriented. By the time people currently get wind of a settlement, it’s usually already been signed off on by a judge,” said Iarrapino. “The only folks who need to lose sleep over this bill are the folks who represent companies that plan to violate state laws designed to protect clean air, clean soil and clean water.”

In late 2005, almost three years before CLF filed its legal complaint, Iarrapino brought Vermont’s noncompliance to the attention of state environmental officials at the time: Torti and Coleman.

Shocker, right?

“We thought we were in compliance, or pretty close, and we didn’t think there was a lot [that] needed to be done to rectify that,” Coleman told “Fair Game.” “The legislation in front of us takes a very different view.”

Expanding public intervention on all permits, including Act 250 violations, could add significant legal costs for businesses that often agree to fines and penalties after an extensive and costly agency review, said Coleman. “To then have a third party come in and appeal that settlement seems unfair,” he said.

Mears defended the legislation, calling it a form of good government. “Enforcement actions are rarely a prerequisite for business development or growth but are often a response to a failure of a person or business to comply with the law,” he noted in an email to Torti. “Allowing public comments ensures that the enforcement decisions made by the agency are fully transparent, fair and consistent.”

No Man Is an Island

Most readers know by now where Gov. Peter Shumlin spent his secret six-day vacation: soaking up the sun on the Caribbean island of Dominica.

Shumlin asked his staff not to disclose his location for two reasons, he told reporters last week: He wanted to be like “any private citizen,” and he was traveling without his Vermont State Police security detail. He even drove himself to and from the airport.

That’s a rarity, folks. Past govs have state troopers in tow wherever they go — be it Tinmouth or Taiwan.

Not this time. Shumlin said he wanted to be a private citizen on Dominica and not a visiting dignitary. And he paid for the trip with his own money.

Shumlin said it felt good to be in a place where no one knew his name. But could that really be true? Putney Student Travel — Shumlin’s family business — has run a community-service program on Dominica for years.

Salmon Salvo

Republican Auditor Tom Salmon has asked Sen. Bernie Sanders (I-VT) to agree to a campaign-spending cap.

In the event he decides to jump into the U.S. Senate race, Salmon is suggesting the candidates pledge to spend no more than $3 per Vermonter, or a total of $1.86 million apiece.

In an email to Sanders’ Senate chief of staff Huck Gutman, Salmon wrote: “This ‘local solution’ addresses the threat to Democracy caused by money and special interests. I have said this publicly before — and I now invite you directly to consider sending a different message across the state and country: In Vermont, Money and Special Interests will not impair Democracy or elections that will be based on issues and citizen concerns.” The italics, and excessive capitalizations, are Salmon’s.

Noting it’s impossible to impose such limits on out-of-state or third-party groups, Salmon said he hoped the pair could agree to “issue a no-fly order to those groups which seek to advertise on our behalf, at their expense.”

What are the odds he’ll actually take on Sanders? Salmon told “Fair Game” there is a “50/50” chance.

Media Notes

The Vermont Press Bureau has a third musketeer: Jenna Pizzi started work last week covering the legislature for the Rutland Herald and Barre-Montpelier Times Argus. Earlier this year, Times ArgusThatcher Moats joined bureau chief Peter Hirschfeld. Hirschfeld is the lone holdover from last year’s VPB team.

Pizzi comes to VPB by way of Boston University, where she worked for the student TV station and its Massachusetts Statehouse news crew. She’s also written for the Cape Cod Times.