LD1750 Propriety Jurisdiction and Free For All On Administrative Procedure

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.

Downeast Lakes Bowers Mountain Wind Impact

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)

SUMMARY

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  lindsaynewlandbowker@gmail.com

 

UPDATE:  Public Interest Reporters Take on LD1750  http://pinetreewatchdog.org/ld-1750-a-study-in-how-special-interests-get-their-way-in-the-maine-legislature/

Thank you Naomi Schalit

 

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About lindsaynewlandbowker

Bowker Associates, Science & Research In The Public Interest, is an independent non profit providing self initiated pro bono analysis on key issues with a potential for massive adverse environmental impact . Bowker Associates has been an internationally recognized and cited voice in analysis of the Samarco failure, its consequence, and the possibilties for recovery. In 2015 Bowker Associates collaborated with globally respected geophysicist David M. Chambers to recompile global authoritative accounts of significant TSF failures in recorded history and to analyze these data in the context of gloal mining economics 1910-2010 ( Risk, Economics and Public Liability of TSF Failures, Bowker/Chambers July 2015) In 2014 Bowker Associates commissioned globally respected geophysicist and hydrogeologist Dr. David Chambers to undertake two technical works: (1) development of technical go no go criteria for vetting mine applications tp://lindsaynewlandbowker.wordpress.com/2014/01/05/a-new-statutory-regulatory-framework-for-responble-sulfide-mining-should-this-mine-be-built/ and (2) a case study of Maine's Bald Mountain, an un mined low grade high risk VMS deposit demonstrating the efficacy and accuracy of two risk assessment tools in vetting mine proposals https://lindsaynewlandbowker.wordpress.com/2014/02/28/mountain-x-would-you-issue-a-permit-to-this-mine/ In Maine, Bowker Associates has deeply engaged and been a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine, and Maine's revisitation of mining in statute and regulation... Our only “client”: is always “the pubic interest”. Our model is to focus on only one or two issues at a time so that we have a substantive command of the relevant field as our foundation for ongoing engagement. Our core work is in envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best models are also a major thrust of our work in building and evaluating public policy. Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmental Risk Management., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy. Appointed by Governor Mario Cuomo to New York State Banking Board (served 1986-1996); President New York Chapter Chartered Property and Casualty Insurers; Environmental Committee, Risk and Insurance Management Society; Director, Convenor/Co-Chair Bermuda Market Briefing "From Captive to Cats" Hamilton Bermuda. Published Articles of Significance The Risk Economics and Public Liability of Tailings Facility Failures, co-authored with David M. Chambers, July 2015 Beyond. Polarization: Superfund Reform in Perspective, Risk & Insurance Managing Risk For Loss Prevention & Cost Control (Jan. 24, 1997). Lead Hazards and Abatement Technologies in Construction: A Risk Management Approach CPCU Journal 1997 Employee Leasing: Liability in Limbo Risk Management June 1 1997 Environmental Audit Privilege and the Public interest Risk & Insurance Managing Risk For Loss Prevention & Cost Control, April 1997 Asbestos:Holes In Abatement Policies Need To Be Plugged, Lloyd’s Environmental Risk International, May 1993 Editor Published Letters Evironmental Risk Management Beware of Facile Policies Like Fetal Protection Business Insurance 1995(?) High Court Review May Increase Sale of Bank Annuities Business Insurances August 8, 1995 Professional Profiles Protecting the Big Apple’s Core Managing Risk For Loss Prevention & Control December 1996 Major Career Highlights First rigorous analysis showing Relationship Between declining ore grades and TSF Failures of increasing consequence ( July 2015) FIrst Documentation that Gentrification Has Same Impacts as Unassisted Displacement from Urban Renewal Sites Direted Court Ordered EIS of FHA Mortgage Scandal Created Nation's First Homeownership Program for Low Income People (SHIP) Created Earliest Geographic Information Systems Using Defense Technology Developed By IBM Designed and Conducted Parallel Census Count to Show Systematic undercount in minority neighborhoods Documented Bias in ISO Territory Rating Plans for Private Passenger Auto Insurance Using ISO's own Rating Techniques Demonstrated Inherent Bias in Mortgage Policies of Banks With Inner City Branches Demonstrated that NY Telephones Plan for Area Code Split To accommodate anticipated cell phone demand was not efficient and would exhaust in 5 years ( which it did) Undertook First Systematic Evaluation of Child Protective Services Caseload Using Multi Variate Analyic Techniques Developed Child Protective Caseload Management and Tracking System (CANTS) and directed implementation in 4 client states including Illinois, Florida and New York Created and Ran Office of Risk Management for NYC DEP the Nations largest Water & Sewer Authority . Designed, Created and Administered Nation's First Owner Controlled Insurance Program (OCIP)for High Risk Tunneling Education Masters NYU Graduate School of Public Administration BSC New School For Social Research Maine Public Schools Deering High School
This entry was posted in Adjacency Impacts, BEP, Bowers Mountain, Bowker Associates, Bowker Associates Science & Research In The Public Interest, carbon emmissions, Downeast Lakes, Environmental Risk Management, Expedited Permitting, First Wind, Forest Ecology Network, Highly Valued Natural Resources, James Palmer, LD1750 Maine 126th Legislature, Lindsay Newland Bowker, LUPC, Maine Audubon, Restore North Woods, Scenic Impacts, Sierra Club, Uncategorized, Wind policy and tagged , , , , , , , , , , . Bookmark the permalink.

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