- Tim Newcomb
When Gov. Phil Scott outlined his $6.8 billion budget on Tuesday, he proposed spending $500,000 to modernize Act 250, the state's 51-year-old land-use law.
Act 250 reform efforts are nothing new. But how he first proposed those changes — with a surprise executive order issued January 14 that circumvents the legislative process — has raised the eyebrows of lawmakers and the ire of environmentalists.
"It's a little bit of a high-noon-in-the-corral kind of move," Sen. Chris Bray (D-Addison) said of Scott's order.
The proposal set off a flurry of activity in the legislature as committees from both the House and the Senate scrambled to understand and respond to the order — and the shot clock it started.
Scott employed a type of order intended to reorganize state government "for efficient administration," which can only be issued before January 15 of a new biennium and which goes into effect 90 days later — unless lawmakers object.
The governor has used such reorganization orders before. The legislature has allowed some, such as his 2017 order creating the Agency of Digital Services. That same year, the body rejected two others, including one that proposed combining departments to create an Agency of Economic Opportunity. The other would have merged the Department of Liquor Control and the State Lottery Commission — a measure the legislature later passed, anyway.
Just how far Scott can go to reorganize state government using executive authority is a gray area, but the Act 250 reforms he seeks are clearly significant, said Luke Martland, the legislature's top attorney.
"The impact of these organizational changes is broad, and it does hit a number of different areas," Martland told lawmakers last week.
Act 250 permit applications are decided by nine district commissions composed of volunteers who may have different ideas about what's appropriate for their communities. The problem, according to the Scott administration, is that this decentralized model results in inconsistent decisions and unpredictable outcomes for developers. It also leads to costly, duplicative and time-consuming appeals, the administration contends.
Scott's order would strip these commissions of most decision-making power and shift it to a new, statewide board of three full-time, paid professionals appointed by the governor. Board members would be full-time staff experienced in environmental and land-use law. For a major case, two local volunteers would also be seated to review and vote.
Scott is playing hardball to get the regulatory reforms he believes are crucial to create a more business-friendly climate in the state, but some lawmakers viewed the move as a misguided gubernatorial power grab. In addition to using a tactic that pressures the legislature to act, he is also using some suspect legal maneuvering.
State law allows either the House or the Senate to block reorganizational orders. But Scott's legal team is arguing that the law is unconstitutional and that both chambers must act to do so.
Martland told lawmakers that the governor's claims were "inaccurate." "It is unclear if the Governor's Office's misrepresentation of the law is mistaken or intentional," Martland wrote in a January 19 memo to lawmakers.
Asked about the legal controversy last week, Scott said he had "a lot of faith" in his general counsel, Jaye Pershing Johnson, and was confident the administration's position was correct.
"I think it's quite clear, if you do the analysis, that it has to be turned down by both bodies," Scott said. "And we just wanted to make sure that everyone knew that going in."
Skeptical lawmakers gave the order a chilly reception.
"I'm still not sure what the problem is we're being asked to fix with this executive order," Sen. Dick McCormack (D-Windsor) said last Thursday during a hearing of the Senate Natural Resources and Energy Committee.
Scott's order would make a change similar to one floated last year by the administration and the Vermont Natural Resources Council, which agrees that Act 250 needs a major overhaul to prepare it for new threats such as the climate crisis. This time around, however, VNRC is not on board.
"We don't feel the executive order is the way to go," said Brian Shupe, the group's executive director. "It's too complicated. It's too controversial. It's too significant of a change. It needs to go through the legislative process."
That process was about as messy as it gets last biennium. In 2019, the House struggled to draft a bill that included many of the recommendations made by the Commission on Act 250, a six-member panel of lawmakers who had spent more than a year examining the law with an eye toward its next 50 years.
After a Scott administration and VNRC compromise meant to jump-start the process went nowhere, the Senate narrowed the scope of the effort last year during a session largely devoted to COVID-19. It ultimately passed a bill that skipped the district commission issue entirely, addressing only protections for large forest blocks and rules for permitting recreational trails.
In the run-up to the current remote legislative session, new leaders of both the House and the Senate stressed that they planned to focus almost exclusively on COVID-19 relief. Scott's order made it clear he didn't want to see Act 250 reform shelved.
In his State of the State speech at the session's start, he framed Act 250 reform as an economic development issue. He said he hoped "to eliminate duplication and reduce costs, making it easier to revitalize downtowns and village centers in places like Newport, Springfield and Rutland."
Asked last week how Act 250 hinders economic growth in the state, Scott said the inconsistency of district commission decisions was "evident." He didn't explain further.
"I don't think that there is going to be a lot of conversation about that," Scott said.
Actually, that's all anyone was talking about last week. Lawmakers, environmental advocates and district commissioners alternatively questioned whether there is inconsistency and, if so, whether anything is wrong with that.
"What did Emerson say? 'A foolish consistency is the hobgoblin of little minds,'" Bray told Seven Days last week, quoting Ralph Waldo Emerson's famous essay "Self-Reliance." "I don't know if we're aiming for a consistency that is desirable or that would actually kind of steamroll the entire state into one flat view of what it should look like."
Passed in 1970 in response to unchecked growth that followed the completion of Vermont's interstate highways, Act 250 was structured as a statewide law that would preserve local control of major projects through district commissions that reflected community input.
It makes sense that a project in a Northeast Kingdom town such as Maidstone, population 208, would get a different reception than a project in suburban South Burlington, Bray said.
"Inconsistency may be a matter of perspective," he said.
What critics call inconsistency is, in fact, intentional and appropriate flexibility that has helped make the state what it is today, said Annette Smith, founder of Vermonters for a Clean Environment.
"I think Act 250 was designed, by its nature, to have each region reflect its regional differences," Smith said.
The tension between consistency and local control is as old as the law itself, and the governor's criticisms are neither new nor accurate, Smith said.
"We're living in Groundhog Day," Smith told the Senate Natural Resources and Energy Committee. "This is something we've heard over and over again."
Tim Taylor, a district commissioner from Thetford, argued that Act 250 is bound to result in varying decisions because some of the law's guiding criteria are inherently subjective. For example, criteria addressing "Aesthetics, Scenic and Natural Beauty" counsels commissioners to consider whether a proposed project "offend(s) the sensibilities of the average person."
"It's an average-person standard," Taylor told the committee. "This doesn't require experts."
Act 250's decentralized structure is its strength, because when hearings are conducted properly, developers and community members feel heard, Taylor said.
"That's what the process is largely about," Taylor said. "It's listening and hearing and being empathetic, being neighborly, being Vermont."
Another district commissioner, Fred Baser of Bristol, told lawmakers that project proponents often benefit from decisions made by the local commissioners. In one case, his commission was able to significantly reduce the "handsome, five-digit" traffic fees a developer would have had to pay for a project in Middlebury by taking a close look at the likely traffic patterns.
Baser, a former Republican state representative, took offense at Scott's suggestion last week that district commissions face "very, very technical, legalistic decisions" and might not be up to the task.
"When I first heard that, I said, 'You know, do they think we're stupid?'" Baser said.
There is, however, significant turnover on district commissions, and Fish & Wildlife Commissioner Louis Porter said his staff spend an inordinate amount of time educating new members.
A professional board would help, he said.
"You will have consistent application from the full-time board members, and you will also have input from those who know the local area and community best," Porter said.
Clean water advocate James Ehlers thinks he has a simple solution to the turnover. "Pay them," he said. Currently, citizen commissioners get $50-a-day stipends to hear applications, which he called "an insult."
"Who in this day and age can dive into these super complex ecological and social issues for $50 a day?" Ehlers said.
Well-trained, fairly compensated commissioners would serve longer and accrue the experience that would make them better at their jobs, he said. But that's not in the cards, because Scott views Act 250 as an impediment to growth.
"This is not about protecting the environment," Ehlers charged. "This is about making things more efficient for developers."
The debate over the Act 250 reforms could be decided neither by the legislature nor Scott, but in the courts.
Bristol attorney James Dumont has already challenged Scott's order on constitutional grounds. Further, if one chamber of the legislature attempts to nix the order on its own, Pershing Johnson said, the governor could challenge that. A 1983 U.S. Supreme Court decision struck down one-chamber vetoes, she said.
"When we have two branches of government with different positions on the law, it seems to me prudent to let the third branch decide," she told lawmakers.