April 21, 2014 The following post speaks to a version of LD1750 that existed at the time this was written. On a holliday weekend, I sent the content of this post to Senate President Justin Alfond, Jeff McCabe and all members of the Committee on Energy Utilities Technology and by Tuesday, the day of the scheduled public hearing, all of the issues addressed here were satisfactorily addressed in the bill. The version of the bill enacted by the Legislature did not include an of these issues.
I have left this post because I believe the issues are important to uphold.
A state’s clear unassailable APA is its hallmark of transparency and integrity.
“If government is to operate with both efficiency and justice, it is essential to the protection of individual and public rights that procedural safeguards be built into the administrative process. An ill-conceived regulation, a hasty administrative decision, or a hearing conducted unfairly is far more likely to affect our daily lives than most court rulings.
The rights to drive, to hunt or fish, to practice a profession or trade, to be assured of proper regulation of public facilities-literally thousands of activities interwoven with the fabric of society to the extent that much of our life is spent in their pursuit-are subjected to daily administrative scrutiny and control.”http://mainelaw.maine.edu/academics/maine-law-review/pdf/vol18_2/vol18_me_l_rev_218.pdf
THE QUEST FOR JUSTICE IN MAINE ADMINISTRATIVE PROCEDURE: THE ADMINISTRATIVE CODE IN APPLICATION AND THEORYProfessor Julius Stone of the University of Sydney ( Maine Law Review)
LD 1750 is an assault on our already imperfect Administrative procedure Act and sets a very troubling precedent that all advocates should stand up to and push back against.
Photo courtesy of Paula Moore. Downeast Lakes Bowers Mountain Wind Farm Impact Area.
The towers would be at the far right and cast a reflection on the lake all along the shore according to Downeast Lakes advocates..
Downeast Lakes Photo Gallery:http://www.ppdlw.org/gallery.htm
Both Sierra Club and Maine Audubon have actively supported First Wind in their efforts to reverse DEP’s denial. Here is Sierra Club’s national policy on wind which is binding on local chapters http://www.sierraclub.org/policy/conservation/wind_siting.aspx. Here is Audubon’s http://policy.audubon.org/wind-power-overview-0. In their policy statement on wind Audubon states that they were instrumental in developing siting guidelines for the wind industry. In Maine. the President of Audubon submitted written testimony in support of First Winds appeal of the Bowers Mountain denial. Here is the Natural Resources Defense Council Policy on Wind Energy http://www.nrdc.org/energy/renewables/wind.asp. It does not appear that the Natural Resources Council of Maine testified in the matter of the First Wind Appeal of DEP’s denial of the Bald Mountain in Farm application.
Statement to the Joint Standing Committee on Energy Utilities & Technology
February 18, 2014
LD 1750 An Act To Amend the Maine Administrative Procedure Act and Clarify Wind Energy Laws
My first concern is propriety especially with this bill advanced as an “emergency bill”. The text and issues of this bill are drawn specifically and directly from the First Wind Appeal of the DEP’s Bowers Mountain decision. That adjudicatory proceeding is still active before the BEP. For that reason alone this bill should be withdrawn. The Bowers Mountain project has been twice denied. The facts and circumstances of the most recent denial are well known and have been well publicized. It was a very close call as James Palmer, DEP’s own expert noted.
“James Palmer the DEP expert testified that while it was within the law it was right at the edge of constituting a significant adverse impact” https://bangordailynews.com/2013/09/04/news/penobscot/first-wind-appeals-department-of-environmental-protections-rejection-of-bowers-mountain-project/
This was really a too close to call kind of case not a matter of DEP wandering beyond or defying legislative intent as DEP’s expert further explained:
“In addition, while the project area is designated as part of the expedited permitting area for wind energy projects, the great ponds are primarily located in the only area in southern and eastern Maine that is not designated as a wind expedited area, which is the Downeast Lakes Region,” ( op cit.)
DEP exercised reasonable discretion fully in line with legislative intent. There were and are issues with the clarity of protection intended for the Downeast Lakes in their exclusion from the “expedited permitting” area. What the Bowers case tells us more than anything is not that MAPA isn’t working well or has gaps and deficiencies that impede the intended working of the “wind statute” but that DEP,LUPC and perhaps this Committee, in conjunction with, and with guidance from, the stakeholders and advocates for the Downeast Lakes need to revisit the adequacy of protections now in place .
My second concern is of jurisdiction. Administrative Procedures are under the jurisdiction of the Joint Standing Committee on State & Local Government, not this committee. Any clarifications of the wind power statutes are clearly within the jurisdiction of The Joint Standing Committee on Energy Utilities &Technology but these should be addressed via statutory amendment to the “wind statute” and not the Administrative Procedure Act (MAPA).
I think it sets a very bad precedent for each Committee of jurisdiction to be making MAPA changes as a way of clarifying legislative intent even if the changes are specific to an area of law and a set of statutes under that Committee’s jurisdiction.
On the basis of these two principles alone LD1750 should be withdrawn , tabled or referred to the JSC State & Local Government. No legislative action by either committee, however, is appropriate while the Bowers Mountain appeal is still pending before the BEP.
LD1750 though does address and bring up many issues of substance and significance in Administrative Procedure and in some cases does point to gaps that could and should apply across the board. Focusing on these issues of significant public policy on Administrative Procedure, and contemplating the possibility of consideration by the JSC State & Local Government at some time in the future, my comments address:
(1) whether the changes suggested in LD1750 that are proposed across the board changes would strengthen and improve MAPA and therefore merit further consideration by the JSC of jurisdiction.
(2) whether the changes superseding MAPA in the “wind statute” are justifiable and appropriate Is there actually a limitation in MAPA that frustrates intended implementation of the “wind statute” that can only be addressed by setting a different procedural standard in statute?
(3) whether changes suggested in LD1750 in the context only of adjudicatory proceeding s are standards which should apply more broadly in administrative procedure law.
In particular I encourage the JSC State & Local Government to consider and expand upon holding agencies accountable to seeking best knowledge and best guidance. The same with the principle that an agency must make account of any decision contrary to that of a qualified expert whether procured by the agency, offered directly by the expert or retained by a stakeholder. I encourage this Committee to consider building this mandate into future legislation.
WHY NO COMMITTEE OTHER THAN THE COMMITTEE OF JURISDICTION SHOULD MAKE MAPA CHANGES
All of Title 5, Chapter 975, ( MAPA) expresses what duty the agency owes with respect to transparency, clarity, consistency and integrity of conduct and decision making. In public policy in most states and at the Federal level Administrative Procedure Law is a uniform set of performance standards and universally there is only one entity with jurisdiction.
In general a statute should address or supersede MAPA only where there are unique conditions which are clearly not anticipated by or addressed in MAPA. For example Section 31 of the mining statute (P.L..2011 C653) provides that until the legislature actually approves the new mining rules, the old rules remain in effect while MAPA provides that an agency may proceed with a final adoption of rules if the legislature does not take definite yes or no action.
Any statutory provisions that supersede or override MAPA should in general set a standard not in conflict with MAPA and not at a lower standard than MAPA. In other words, a statute should not be written with its own version of Administrative Procedures . That would confound and effectively disenfranchise the public interest.
All provisions on Administrative procedure in statute should have the specific approval and concurrence of the JSC State & Local Government. That is an amendment I would like to see made explicit in our MAPA.
ARE THERE ATTRIBUTES OF THE “WIND STATUTE” THAT ARE UNIQUE AND NOT SPECIFICALLY ANTICIPATED BY MAPA?
The expedited permitting provisions of the wind statute may place it outside the “norm” contemplated in MAPA. It is basically very close to “permit by rule” for a scale of impact that can be as large as projects falling under site of development law, depending on the number of towers and the extent of clearing and infrastructure needed to erect and maintain the towers. In that context the specificity of the rule and all the documentation required to support an agency decision may indeed rise to a much higher standard than may be contemplated in MAPA.
However The “wind statute” has been in effect since 2003 and there have been no indications of any sort, especially in the Bowers Mountain , that MAPA has been an impediment to implementation of the wind statute in accordance with legislative intent,
That case should have to be made to the committee of jurisdiction to justify any revisions in wind statute that address administrative procedure.
HOW SHOULD STATUTORY SPECIFIC ADMINISTRATIVE PROCEDURES BE RECONCILED WITH MAPA?
Any changes made in statute which supersede or replace MAPA provisions must still meet the fundamental principles of MAPA. L D1750 is in specific conflict with MAPA in proposing to afford all “application instructions” the weight of judicial enforcement. The language in MAPA specifically excluding “application instructions” was only enacted in 2011 and so presumably represents the current and binding view of the Committee of Jurisdiction.
“B. The term( “rule”) does not include:
(1) Policies or memoranda concerning only the internal management of an agency or the State Government and not judicially enforceable;
(2) Advisory rulings issued under subchapter 3;
(3) Decisions issued in adjudicatory proceedings; or
(4) Any form, instruction or explanatory statement of policy that in itself is not judicially enforceable, and that is intended solely as advice to assist persons in determining, exercising or complying with their legal rights, duties or privileges. [2011, c. 304, Pt. G, §1 (AMD).]
Therefore it would clearly seem not appropriate for this committee to write that into wind statute without making a clear and acceptable case to the Committee of Jurisdiction and having the concurrence of that committee.
(MAPA could probably use a clarification that all forms instructions and explanations should be consistent with statute and I hope the Committee of Jurisdiction will consider that as part of MAPA reforms and updates.)
“The weight given” in evidence provisions suggested in LD1750 clearly do not belong in the definition of “rule” as “evidence” is only relevant in adjudicatory proceedings.
However, it is a fundamental “good government “ principle that the implementing agency’s reasoning and assimilation of factors in decision making should be fully and clearly transparent and consistent. MAPA does not have that standard clearly expressed. It is too easy to lose accountability and clarity in a “basis statement”. This clarity on the relative weight given to different factors and elements should be clear in any rule as a matter of good government and full transparency.
Rulemaking licensing permitting and adjudicatory proceedings should never be a “black box” So I hope this is a consideration the Committee of jurisdiction may take up in considering future reforms to MAPA.
EXPRESS OBLIGATION OF AGENCY TO SEEK BEST KNOWLEDGE: ACCOUNTABILITY TO QUALIFIED EXPERT OPINION
It is presumed but not explicitly stated in MAPA that an agency charged with interpreting and applying law, especially in permitting or licensing functions, will seek to posses “best knowledge” in all areas of its statutory mandate and will seek “best knowledge “ , especially in rulemaking. This is a principle that should be explicit in MAPA and explicit in every single statute.
An agency should have to make a clear written explanation whenever its rulemaking, licensing or permit decision is at variance with the opinion of a “qualified expert” whether that expert is retained by the agency or a stakeholder or simply submitted by the expert to the agency. This is a principle that should be part of MAPA and explicit in every single statute. ( and of course we should be clear on what a “qualified expert” is and clear on the situations in which agency variance is justified)
To restate, LD1750 should be set aside for the sake of propriety until Bowers Mountain is decided by the BEP. It is unseemly given the exact and specific connection between First Winds appeal and the language in LD1750 to consider this language in any form until Bowers Mountain is decided.
Jurisdictionally only the Joint Standing committee on State & Local Government can make any changes to MAPA itself. If the JSC Environment, Utilities & Technology has identified specific areas where MAPA has impeded the intended implementation of Wind Energy Law it should identify these areas to the Committee of jurisdiction and seek relief either in MAPA or through the wind statute itself.
LD1750 raises many issues of jurisdiction and policy that merit further consideration both in setting guidelines for when and how a statute may include procedures that are different from or not included in MAPA. In general the case should be made that MAPA is unable to accommodate intended implementation of the statute and even then the allowed procedural language in statute should be narrowly focused .
Respectfully Submitted With Appreciation For Your Consideration of these Comments
Lindsay Newland Bowker, CPCU,ARM, Environmental Risk Manager
Bowker Associates Science & Research In The Public Interest
15 Cove Meadow Rd
Stonington, Maine 04681
207 367 5145 email@example.com