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Environment

    Nutty Enviro Scheme of the Century Passes U.S. House
    The U.S. House has just passed a prodigious bill to impose an enormous hidden tax on every American consumer, lavish benefits on countless rent-seeking special interests, launch dozens of new government spending and regulatory programs, employ thousands of new bureaucrats, promote billions of dollars in wealth transfers to Third Worlders peddling dubious carbon offsets, and drive a large part of our economy overseas.Thanks a lot.

    The Enviro Wish List
    The state's environmental organizations have announced their composite wish list for the 2007 legislature. It exhibits a fanatic desire to regulate, require, prohibit, tax, and subsidize everybody and everything, until Vermont becomes the enviros’ Perfect Little State. (September 2006)

    The Underhanded Wilderness Grab of 2006
    The Wilderness Coalition, and their pals Sens. Leahy and Jeffords, have a new scheme to slip through their yearned-for designation of thousands more acres of permanent wilderness in Green Mountain National Forest: under the table, with no impact analysis, no hearings, no explanation, no record vote, and no accountability. Slick. (August 2006)

    Another Carbon Dioxide Lawsuit Travesty
    Attorney General Sorrell has sued five Midwestern coal burning utilities for the "federal public nuisance" of emitting carbon dioxide, thus stimulating calamitous "global warming". This is political science, not real science. (July 2004)

    Refighting a 900 Year Battle
    After the Norman Conquest of 1066, the Saxon peasants of England fought for over two hundred years to regain from arrogant kings their historic rights to make use of the forests. That struggle is playing out again in the battle over Federal wilderness designation in the Green Mountain National Forest. (June 2004)

    Permit Reform is Not Enough
    House and Senate are deadlocked over reforming the environmental regulatory process. But process is not all of the problem. It's time to attack the barnacles added to the permit criteria over 33 years. (September 2003)

    Biota or People Take Your Pick
    The Conservation Law Foundation is using the purported health of "aquatic biota" to shut down development in Chittenden County. It's about time for our legislators to put people first. (August 2003)

    The Battle of Potash Brook
    Thanks to the efforts of one enviro law firm, the Water Resources Board shuts down development by rejecting of a state of the art stormwater management system. (September 2001)

    Thirty Years of Straightpiping
    Why does government require thirty years to stop 14 houses from straightpiping sewage into the Moose River? (August 2000)

    The People vs. the Despots
    District environmental commissioners are essentially unaccountable to anybody. Here's one way to make them a little bit accountable. (January 1998)

Nutty Enviro Scheme of the Century Passes U. S. House
July 2009

The closer you look at the enormous Waxman-Markey energy tax bill that passed the U.S. House on June 26, the more you come to realize what it requires you to believe, the more you realize what drastic changes it promises to impose upon America, and the more you grasp what it will cost Americans in higher prices, a crippled economy, and lost jobs, the more you - a normal person - will conclude that this is crazy, costly, and dangerous.

The whole disgraceful exercise is founded on the premise that human emissions of carbon dioxide are producing dangerous “global warming”. There are plenty of statements to this effect by Al Gore, Bill McKibben, Environment Defense, Sierra Club, the UN’s IPCC, and NASA’s eccentric climatologist James Hansen, who is urging citizens to commit civil disobedience to halt fossil fuel combustion.

The clamor of these enviro politicians is totally unsupported by real science. “Global warming” disappeared a decade ago, forcing the enviro propagandists to switch to the not-disprovable “climate change”.

Carbon dioxide produced by fossil fuel combustion is a fraction of one percent of the atmosphere. It is tiny in comparison to the most important greenhouse gas, water vapor (that fortunately can’t be taxed or regulated).

The global warming scare is based on computer models of the atmosphere that – if the operator suitably jiggers the parameters – have been made to predict startling global temperature increases in the 21st century. However the computer models are unable to reproduce the known global temperature record since 1950, they failed to predict the current cooling trend, and they predicted a upper troposphere hot spot in the tropics that clearly does not exist.

The alarmists brought out ice core studies to show that a rise in carbon dioxide concentration (caused by what?) hundreds of thousands of years ago led to higher temperatures. That fell apart when it turned out that the higher temperatures caused higher carbon dioxide concentrations (as CO2 outgassed from warmer oceans), not the other way around.

Intellectually corrupt scientists and politicians are willing to sign on to the “sky is falling” argument, because that gives them cover to get their hands on enormous money flows. The Waxman-Markey bill aims to drive up the price of fossil fuel energy, to depress CO2 emissions.

The mechanism is a cap on carbon dioxide emissions from (to start with) power plants, vehicles, and energy-intensive industries.

Obama first proposed to auction off permits allowing the emission of one ton of carbon dioxide. Every utility and industry would have to buy enough permit units to stay in business. The cost of buying the permits would of course be passed on in everyone’s electricity, food, fuel and product bills. The proceeds of the government’s auction of this artificially valued funny money would fund a host of “clean energy” and “green jobs” schemes.

But as Congress labored to produce a bill, a furious big-money corporate lobbying campaign forced members to start demanding that the government initially give away the credits to their favored industries, such as coal-burning utilities. By the time the bill squeaked by to passage (219-212) with concession-bought votes, 85% of the initial credits were handed out free, in the name of “consumer protection”.

Of course if consumers were permanently protected against the bill’s carbon price increases, the whole point of the bill – to suppress carbon dioxide emissions – would be defeated. The key here is that the backers were forced to make the bill relatively painless in its first few years to get it through the House. Then to pacify the restive enviros the cap will be gradually screwed down, the price of the emission credits will escalate, and consumers will be forced to pay untold billions of dollars in what amounts to new energy taxes hidden in the cost of almost everything they consume.

The bill also contains a provision, demanded by labor unions, to put an import tax on products manufactured in the Third World, whose governments have steadfastly stated that they have no intention to abide by any emissions limitation scheme, unless the developed nations transfer enough wealth to them to get them to change their mind. Even Obama balked at this, since any such import tax would trigger a trade war.

If carried out as advertised, this prodigious bill promises to reduce global temperature by a fraction of one degree F by 2100. For this, Congress is going to impose an enormous hidden tax on every American consumer, lavish benefits on countless rent-seeking special interests, launch dozens of new government spending and regulatory programs, employ thousands of new bureaucrats, promote billions of dollars in wealth transfers to Third Worlders peddling dubious carbon offsets, and drive a large part of our economy overseas?

You’re thinking, “they’ve got to be kidding.” But they’re not.

The Enviro Wish List
September 2006

Each election year an alliance of Vermont’s environmental advocacy groups, called the Vermont League of Conservation Voters, queries candidates for the legislature on their views on issues deemed crucial to the enviro movement. The current questionnaire contains almost almost three dozen issues.

While there is no suggestion of priorities among the issues, taken in their totality they reveal what the enviro movement will ask the 2007 legislature to enact.

First, the enviros would increase spending for the Housing and Conservation Board (currently $26.4 million a year), and dedicate some revenue stream to it so that in future years this program would get its funding automatically, completely outside the competition of the appropriations process.

There would be a green light for industrial wind farms all over Vermont’s ridges. There would be a 200% increase above the 2006 level of the energy efficiency charge on everyone’s electric bill (the Public Service Board recently approved a 50% increase.)

There would be increased funding for “public transit”, including “regional rail” lines. The embarrassing $28 million failure of Gov. Dean’s Champlain Flyer seems to have faded beyond memory. The uncompleted Chittenden County CIRC highway would never be heard from again.

The owners of SUVs and other heavy vehicles would be required to pay a new state gas guzzler fuel tax. The proceeds would be used to subsidize the purchase of low emission vehicles.

Groundwater would be declared a public trust resource, and anyone wishing to drill a well to tap it would face the need for a permit, presumably accompanied by payment of a significant fee. Farmers who followed state-approved “sustainable agricultural practices” would receive state subsidies.

Spurred by the imagined terrors of human-caused global warming, the state would aggressively cut back on greenhouse gas emissions. How this state would force people to do this is not explained, but strict regulation, a carbon tax, and tradable emissions credits are the techniques of choice. The 2006 legislature already passed a bill (Act 168) to reduce greenhouse gas emissions to an astonishing 75% below their 1990 levels (by 2050, “if practicable using reasonable efforts”).

The enviros would impose immediate Renewable Portfolio Standards on electric utilities, requiring the utilities to buy a significant percentage of their power from enviro-approved (and necessarily more expensive) renewable generators. (The enviros do not consider HydroQuebec power a renewable resource, and they view nuclear energy as totally unspeakable, if not a felony.)

To relieve the Conservation Law Foundation of the necessity of raising money to sue the state to stop growth, that function would be institutionalized at taxpayer expense in an “Office of Public Advocate” (for the environment). And of course, where CLF is required to intervene to protect the environment from lax state enforcement of environmental laws, the state would make “intervenor funding” available to cover the tab.

A Genetically Modified Organism (GMO) bill would impose strict liability on the manufacturer of genetically modified seeds. That is, if GM pollen from Farmer A’s cornfield drifted across to Farmer B’s organic cornfield, the seed manufacturer (Monsanto) and not Farmer A would be held responsible for damages. (This bill failed in 2006, after prolonged wrangling between House and Senate.)

This is just a sampler of the enviro agenda. Some of its proposals – improved methods of disposing of mercury, computer equipment, and tires, for instance – would strike most people as worth doing. Still, one might well wonder how a state that adopted all of these recommendations would, in time, have any economy left. Certainly any business owner would think long and hard about locating or expanding in a state whose legislature cheerfully passed this collection of laws.

In fairness, over the past 40 years Vermont’s environmental movement deserves considerable credit for creating a pro-environment culture of which Vermonters should be proud.

But by their nature the enviro organizations cannot be satisfied with improvement from zero to 98. They have to get those last two points, no matter how insignificant a further benefit that may represent, and no matter how costly it is to go the rest of the way. To ordinary, practical people trying to make a living and pay their taxes, much of the 2007 VLCV legislative agenda probably looks a bit pricey, a bit foolish, and even a bit threatening to the prospects for Vermont’s economy.

Even after its many successes, Vermont still needs intelligent and practical environmental advocacy. What we don’t need is a fanatic desire to regulate, require, prohibit, tax, and subsidize everybody and everything, until Vermont becomes the enviros’ Perfect Little State.

The Underhanded Wilderness Grab of 2006
August 2006

Ever since 1975, the advocates of turning Vermont’s 400,000 acre Green Mountain National Forest into a wall to wall wilderness, entered only by the occasional foot traveler, have pressed their cause with relentless determination. Now, with the help of the state’s two Senators, the Vermont Wilderness Association and its allies may be on the verge of their greatest victory.

As defined in federal law, “wilderness” means large areas of national forest permanently off limits to any activity deemed useful to humans, or involving internal combustion. No timber harvesting, even of stands killed by fire and insect infestation. No habitat improvement for wildlife. No shelter or trail construction and maintenance with power equipment. No chainsaw clearing of downed trees over trails – only hand tools may be used. No fire roads or fire breaks. No harvesting of downed trees to donate to lower income families for winter warmth.

Unlike all the other land in Vermont’s Green Mountain National Forest, the uses of wilderness areas are not reviewed and adjusted every 10-15 years as part of the Forest Service’s recurring planning process. No Vermonter, nor any Vermont legislature or Governor, will ever again have any say over the use of the wilderness areas. The wilderness restrictions and prohibitions are forever, until the sun burns out.

The Eastern Forest Wilderness Act of 1975 designated 17,300 acres of Green Mountain National Forest as wilderness, at Lye Brook and Bristol Cliffs. The acreage was small, and there was little controversy.

Emboldened by passage of the 1975 act, the wilderness coalition returned in force in 1984, demanding another 100,000 acres. This time there was vocal opposition from the forest products industry, towns within the forest boundaries, foresters, snowmobilers, sportsmen, farmers, and many others. Despite this opposition, Sen. Patrick Leahy, Sen. Robert Stafford, and Rep. James Jeffords drove through legislation adding 41,260 more acres of wilderness, plus 21,000 acres of in-effect wilderness disguised as a “recreation area”.

In 2001 the Forest Service again started its recurring planning cycle in Vermont. The wilderness advocates demanded another 80,000 acres of wilderness, plus 50,000 acres of near-wilderness. After public hearings dominated by wilderness opponents, and an e-mail blitz dominated by the wilderness coalition, the Forest Service came up with its recommendation. It proposed adding another 27,000 acres of wilderness.

The wilderness coalition shrieked “not enough!”. On cue, just as in 1984, Sen. Leahy and Sen. Jeffords, now aided by Rep. Bernie Sanders, announced that they would sponsor a bill to add 48,000 more acres of permanent wilderness, plus another 16,890 acres of bogus “national recreation area”. Of their proposed wilderness acreage, 35,000 acres lies in towns whose town governments are on record as opposed to any more wilderness designation.

It was thought, at first, that such a bill would not be acted on during the few remaining weeks of the current Congress. But Leahy and Jeffords, long-time champions of ever more wilderness, weren’t going to take “no” or even “maybe next year” as an answer. They hit upon the idea of grafting their bill, or as much of it as they could get away with, onto a similar bill creating new wilderness in the White Mountain National Forest in New Hampshire.

The New Hampshire bill contains exactly the acreage recommended by the Forest Service. It has been agreed to by all affected interests in New Hampshire, and is likely to go through easily under a unanimous consent agreement. What could be slicker than Sen. Leahy and Sen. Jeffords slipping whatever their wilderness friends want into the New Hampshire bill, and whistling it through below the radar? No impact analysis, no hearings, no explanation, no record vote, no accountability. Slick.

One would not expect the Republican House to do any favors for Sen. Leahy, Sen. Jeffords and would-be Senator Sanders. But in the hectic final days of a Congressional session, skillful legislators unburdened by principle can sometimes make very improbable things happen.

Vermont could suddenly get 65,000 acres of new permanent wilderness and pseudo-wilderness. Retiring Sen. Jeffords would get his name on a plaque somewhere in the new acreage. Sen. Leahy would win the undying gratitude of the wilderness organizations.

The wilderness coalition would take time out to celebrate, then start to formulate their next demand for more wilderness in 2016, all the while filing more lawsuits to stop timber harvesting in the parts of the Green Mountain National Forest they haven’t yet managed to make permanently off limits to any beneficial economic use.

Left out of these festivities, of course, is everyone else: loggers, snowmobilers, ATV riders, forest towns, sportsmen, farmers, and just plain citizens who do not favor Congress locking up our national forest forever, just to satisfy the insatiable appetite of the wilderness organizations and their two devious agents in the Senate.

Another Carbon Dioxide Lawsuit Travesty
July 2004

There he goes again! Last fall attorney general William Sorrell signed onto a high visibility lawsuit brought by Massachusetts and eight other states, demanding that the federal Environmental Protection Agency declare that carbon dioxide is a “pollutant”.

Never mind that there is absolutely nothing in the Clean Air Act or its legislative history that supports that bizarre theory. Never mind that efforts by enviro members of Congress to add such a finding to the law have twice gone down to defeat. That lawsuit was more for public consumption than legal merit.

Now the attorney general has gone one step further. He has put Vermont’s name on another suit, this time against five large electric utilities that together own 174 fossil fuel burning plants. The suit demands “substantial cuts in heat-trapping carbon dioxide emissions that scientists say pose serious threats to our health, economy, and our environment.”

Note that this suit, like the earlier one, is not aimed at curbing emissions such as sulfur dioxide, nitrogen oxides, particulates, and hazardous chemicals. Those emissions are indeed harmful to human health. That’s why they have been strictly regulated since passage of the Clean Air Act in 1970.

No, the new suit is based on the premise that burning fossil fuel is a “federal public nuisance”, not because the emissions make people sick, but because they will allegedly cause calamitous “global warming.” The plaintiffs must prevail, Connecticut attorney general Richard Blumenthal declared, to “save our planet from disastrous consequences that are building year by year.”

There is a large and accumulating body of evidence that human contributions to naturally occurring global temperature change are insignificantly and probably indetectably small. Like the earlier state lawsuit against the EPA on the same subject, this is political science, not atmospheric science.

Yes, scientists agree that there has been about a one degree F. increase in global temperatures over the past century. Yes, atmospheric carbon dioxide concentrations have risen from 275 ppm in 1800 to 355 today. But while the CO2 concentration has grown rapidly since 1940, the temperature record went into a 37-year decline, only recovering slowly after 1977.

If A and B are increasing steadily, and then B turns around and decreases, scientists are forced to conclude that A isn’t driving B. The most accurate tropospheric temperature readings, taken by satellite since 1979 and confirmed by weather balloons, show little or no warming trend – at most, maybe one degree F. by 2100.

But what about the UN IPCC’s computer projections, that predict as much as 10 degree F. warming by 2100 (as adduced by Sorrell)? Query: do the IPCC computer programs accurately reproduce the known temperature record since, say, 1940? Nowhere close. They are, to use an elegant computer science term, garbage, peddled by UN bureaucrats to advance their political agenda. That agenda is UN control of energy production and thus economic growth and thus wealth, in a way that cripples the U.S. economy to the benefit of the Third World.

An important but little acknowledged scientific fact is that CO2 is only a very minor greenhouse gas. As Richard Lindzen, Sloan Professor of Meteorological Science at MIT, puts it, “The main absorbers of infrared in the atmosphere are water vapor and clouds. Even if all other greenhouse gases (such as carbon dioxide and methane) were to disappear, we would still be left with over 98 percent of the current greenhouse effect.” And human-caused CO2 emissions are only a tiny fraction of that remaining two percent.

There is a good reason why those who are concerned about the prospect of “global warming” don’t bring lawsuits to cut back the water vapor emissions that cause 98% of the greenhouse effect. It’s because government can’t control water vapor, any more than it can control those other major contributors to global climate change, solar intensity and the Pacific Decadal Oscillation.

Just as with the 2003 suit against the EPA, Vermont’s attorney general is using the resources of his office to engage in a politically motivated legal scavenger hunt. Chances are good that this venture will end in failure. There just won’t be any news conference to announce that result, and there won’t be any accounting for the taxpayer dollars wasted.

Refighting a 900 Year Battle
June 2004

In the year 1297, three generations after the English barons forced wicked King John to sign the famous Magna Carta, John’s grandson Edward I was forced to sign a similar document. called the Charter of the Forest. It has a peculiar relevance to an issue now hotly debated in Vermont.

After the Norman Conquest of 1066, King William the Conqueror moved swiftly to take personal control of ultimately one third of the land of England. William created his infamous Forest Courts to put an end to the immemorial rights of the Saxon peasants to make use of the common forest. Woe unto the peasant who ventured into the what had become King’s forest, as his ancestors had done for generations, to cut roof beams, gather acorns, recover a lost hog, or worst of all, take a deer.

Naturally, the Saxons bitterly resented these harsh laws. It took them almost three hundred years of suffering and servitude before they won their struggle to regain multiple use rights in their national forests.

Edward’s Forest Charter of 1297 “disafforested” most of the common forests that the Norman kings had taken from the people, going back to 1154. Thereafter the people could once again pass through the forests toll free, drive their swine, gather honey and acorns, house their hawks and falcons, and even take a deer (in view of a ranger, or if none was handy, by thereafter blowing a horn, “that it might not look like theft”.)

This ancient struggle is being played out again in Vermont today. The Vermont Wilderness Association, a coalition of 15 enviro groups, wants the King in far-off Washington (Congress) to lock up 79,200 acres of the Green Mountain National Forest to forever deny to the people their ancient rights of use. Fighting for the people is a coalition of sportsmen, snowmobilers, loggers, wood products businesses, selectboards, and others who support the Forest Service’s traditional multiple use management.

“Wilderness”, in federal law, is extremely restrictive. It prohibits private motorized vehicles. No timber harvesting, not even removal of down trees for firewood for low-income rural families. No chain saw clearing of deadfalls across trails. No wildlife habitat management. The only technology allowed is hidden tread sensors and even video cameras, so the government can find out what visitors are doing.

In 1975 the wilderness advocates demanded, and got, 17,300 acres of designated wilderness at Bristol Cliffs and Lye Brook. Nine years later the wilderness people were back demanding another 100,000 acres. (They never give anything. They just demand, and there is no limit to their appetite.) Sen. Patrick Leahy and then-Rep. James Jeffords saw that they got another 42,000.

Now the Forest Service is holding public hearings on its draft forest management plan. The Vermont Wilderness Association demands that the Forest Service adopt the version with the maximum amount of designated wilderness. The opponents want traditional multiple use management to continue, and say that the 60,000 acres already locked up are more than enough.

Well, why not designate more wilderness? For the simple reason that federal designation forever prohibits ordinary Vermonters from having any say over the use of the people’s forest. As one wilderness opponent testified to Congress in 1984, “If all power to influence decisions [about the Forest] is stripped from us by the act of a Congress half a thousand miles away, what is left of our right to participate in civic decision making? What becomes of our chance to participate, to debate, to challenge, to propose, to resolve, to vote - those features of Vermont government which have to two centuries distinguished our little state, and made its sons and daughters, however humble their station in life, proud to be Vermonters?”

The wilderness advocates’ never-ending demands have an almost theological goal: to force the human race to atone for its crimes against the environment. The more that people can be denied economic or recreational use of the national forest, the larger the offering laid at the shrine of their Earth Goddess.

On April 6 the Vermont House, on an 86-56 vote, adopted a resolution opposing even one acre of additional federal wilderness designation. The House’s predecessors in 13th century England, who forced an imperious king to give back their forest, would have understood, and applauded. And they might wonder why their descendants aren’t fighting to take back some of what the wilderness groups have already succeeded in locking up.

Permit Reform is Not Enough
September 2003

At the end of the 2003 legislative session both houses had acted to respond to the public demand for “permit reform”, one of the most contentious issues in Vermont politics. The House bill (H. 175) offered a sweeping restructuring of the bodies and rules controlling the issuance of Act 250 and other environmental permits. The Senate’s proffered amendments offered very little in the way of reform.

A conference committee quickly failed to agree, and there the matter stands. Gov. Douglas urged the two chambers to work over the summer to produce a meaningful bill. It now appears unlikely that they will do so. The issue will be back on the front burner in January.

The current debate is very much an inside ball game, dealing with standing rules, appeals routes, and an expanded environmental court. What legislators should be doing, but are utterly unwilling to do, is reconsider the criteria for getting an Act 250 permit.

Act 250, adopted in 1970, is built around ten criteria that applicants must satisfy to get a permit for development. The criteria were slapped together in 48 hours, with very little precedent to go by and not much skill in drafting.

The major draftsman of Act 250, lawyer Jonathan Brownell of the Vermont Natural Resources Council, quickly came to have dark misgivings about his handiwork. In a law review article published four years after the enactment of the bill, Brownell said “we have adopted criteria which as a theoretical matter cannot be proved to have been met…”. He went to “suspect that, in our zeal, we may well have taxed beyond their capabilities the present structures of governmental decision making…”

One would think that environmentally concerned citizens would pay close heed to Brownell’s criticisms, since he was not only the principal author of the act, but also counsel and Chair of the lobby group that got it passed and has defended it against every proposal of amendment, reasonable or otherwise, in all the years since. But one would be wrong. The enviro opposition to reconsidering any of the ten criteria is so intense that hardly any legislators are willing to tackle the task.

But some substantive changes are very badly needed. Here is a sampler of how some of the Act 250 criteria should be changed.

The public benefit of projects undertaken by democratically accountable state and local governments (water supply, wastewater treatment, highways, gravel pits, etc.) trumps Act 250 objections from a minority.

Wetlands and vernal pools less than one acre in size, not connected to a lake, stream or river, may be altered or filled as part of a development.

Agricultural soils that have not been cultivated as part of a farm in the past five years may be developed without mitigation.

“Endangered species” shall mean species of mammals, birds, fish, amphibians, reptiles, trees or plants which are endangered in the United States, not merely rare in Vermont, at the far edge of their habitat.

Telecommunications facilities shall require a permit only with respect to location and appearance. Ordinary radio broadcasting shall not be deemed to be “air pollution” subject to regulation.

The impact of development on municipal or governmental services shall refer only to the impact on the community where the development is to be located, not to the alleged tax or other effects on other municipalities in the region.

An applicant shall not be required to hire archeologists to search for arrowheads or other evidence of prehistoric habitation.

The requirement for compliance with a regional or municipal plan shall be changed to compliance with duly adopted municipal zoning bylaws and subdivision regulations. The municipality’s governing body shall certify such compliance and its determination shall be conclusive.

The intent of such amendments to the criteria of Act 250 law is to inject clarity and certainty, and restrict the discretion, often abused, of the Act 250 commissions and environmental board.

Reforming the tangled and costly permit procedure is an essential first step, but it does not go far enough. It’s time to go through the criteria of Act 250 and peel off the barnacles that three decades of ambitious rulings and far-fetched interpretations have attached.

Vermonters want and deserve strict environmental protection, but it must be made reasonable, fair, swift, and certain.

Biota or People - Take Your Pick
August 2003

The control of stormwater entering streams and lakes has become the most explosive environmental issue facing Vermonters today. The issue was put squarely on the table by the Lowe’s case that boiled up in late 2001.

Lowe’s applied to build a home improvement store in South Burlington. As part of its plan, it included a state of the art stormwater management system to capture the runoff from the roof and parking lot and let the solids settle out before flowing on into Potash Brook and Shelburne Bay.

The Conservation Law Foundation, always alert to any opportunity for blocking economic growth, persuaded the Water Resources Board to deny Lowe’s application because despite the advanced water management system, some runoff pollutants would go into an “impaired” brook. Lowe’s lawyers finally managed to finesse their way to a permit for their client, but the larger question has yet to be settled.

Act 109 of 2002 Act requires the Agency of Natural Resources to issue Watershed Improvement Permits (WIPs) for both large existing developments and new developments in a watershed. Developments like Lowe’s must show that they are using best management practices to control runoff into impaired waterways. In June the Water Resources Board struck down four WIPs issued by the Agency because they found little reason to believe that in five years the affected waterways would no longer be “impaired”.

Of course no applicant can realistically show that such will be the case, since much of the alleged “impairment” comes from sources other than the stormwater runoff. Meanwhile, of course, development stops, which was exactly the point of the CLF intervention.

The keystone of the issue is the requirement of state law that the state “assure the maintenance of water quality necessary to sustain existing aquatic communities.” State biologists measure this by comparing the fish, snails, worms and mayflies in a waterway with a similar reference waterway thought by them (the biologists) to be “normal”.

Note that “impaired” does not mean a slough of bubbling toxic chemicals or health threatening e. coli. The biologists label each waterway – largely subjectively - as “excellent, good, fair, poor, or very poor”. Anything below “good” is by definition “impaired”. The biologists admit that the Vermont practice is “at the cutting edge” of water quality management, which is to say that only a few states (with Ohio and Maine in the lead) are willing to go so far. The standard means, in the words of a state biologist, that “the aquatic biota can not live up to expectations”, meaning the expectations of the biologists worried about biota happiness.

What this comes down to is this: human development is prohibited not to protect human health and the safe use of the public waters, but to create happier communities of mayflies, snails, fish, and worms.

Nobody really knows how ordinary stormwater runoff damages aquatic biota. Nor does anyone know the conditions that biota find desirable, or the consequences to humans of various degrees of biota “impairment”. CLF and its friends are simply using the law to block commerce, growth, paychecks, and profits. Under the existing law and Water Resource Board decisions all the economic benefits in the world cannot override a largely theoretical threat to the wellbeing of macro-invertebrates in the muck of a three-foot wide brook.

Gov. Jim Douglas says he will ask the legislature to amend the law to eliminate the current requirement that the state can issue a permit only if it can guarantee that the stormwater management measures will improve water quality in five years - a prediction almost impossible to make confidently. CLF immediately denounced the Governor’s statement as “outrageous”. Sen. Peter Welch (D-Windsor), a former CLF board member, gave “sharp criticism” to the governor’s proposal.

Just scrapping the five year guarantee rule is not enough. Vermonters need to tell their legislators to make a choice here. They can amend the law to give weight to the real interests of people and the Vermont economy, or keep growth at a standstill and aquatic biota at the top of the economic food chain. The good news is that people have votes and, so far at least, biota do not.

The Battle of Potash Brook
September 2001

Anyone wishing to explore the many obstacles to responsible development in Vermont should focus on the decision of the Water Resources Board on the permit for the proposed Lowe's Home Improvement Center.

Lowe's, a very successful North Carolina based chain, proposes to build a large building materials store as a tenant of the existing Hannaford's supermarket in South Burlington. Replacing a mostly vegetated area (once filled with interstate construction dirt) with a big box store and a paved parking lot means that most of the stormwater falling on the site will wind up in nearby Potash Brook. Mindful of Vermont's environmental sensibilities, Lowe's plan contains a state of the art stormwater management system, involving drainage and a constructed wetland.

Lowe's needs modest amendments to Hannaford's 1995 stormwater permit, which was obtained long before Lowe's entered the picture. The co-applicants ran into a buzzsaw of opposition before the Water Resources Board. It came from the Boston-based Conservation Law Foundation, later joined by the Vermont Natural Resources Council. The CLF - in whose interest has never been made clear - has for years sent its high-powered lawyer corps into action to litigate "for the environment" against all sorts of proposed developments, with little concern for the economic benefits for people.

The CLF's argument is this: The state classifies Potash Brook as an "impaired" waterway. The downstream Shelburne Bay does not meet current Vermont Water Quality Standards. CLF describes the brook as resembling a "sewage lagoon" (ANR, the Agency of Natural Resources, says that its aquatic biota aren't judged to be sufficiently flourishing.) Lowe's will admittedly cause stormwater containing road salt and oilpan drippings to enter Potash Brook.

ANR granted Lowe's a permit based on stormwater management regulations requiring "best management practices", but the agency neglected to consider the effect of the discharges on the overall water quality in Shelburne Bay. There is no effective plan in place for improving water quality in Shelburne Bay. Therefore, claims CLF, zero additional stormwater can be allowed to flow into Potash Brook if it would contain substances that already cause that waterway to be classified as "impaired."

The legal issues are complex, involving the meaning and application of several different statutes. The practical fact is that unlike point source pollution, which issues from pipes that can readily be controlled, stormwater runoff is everywhere. ANR is satisfied if a new project like Lowe's installs state of the art technology to minimize any adverse environmental impact. But it is exceedingly difficult to devise and enforce a stormwater management plan that allocates allowable discharges among thousands of properties in a watershed, including homes, stores, factories, farms, schools, and churches that may have been in existence for a century or more.

CLF is indignant that ANR has yet to implement such a plan against "business". It has gone so far as to brand ANR as "a rogue agency". It has demanded that ANR crack down on long standing developments like University Mall, K-Mart Plaza, and businesses on San Remo Drive.

Significantly, CLF defines the water quality villain as "the commercial real estate industry". CLF did not choose to bring suit against scores of Champlain Valley farms, whose runoff (from manure, fertilizer, and pesticides) is an important contributor to Lake Champlain's water quality problem. (The legislature thoughtfully exempted farms from stormwater discharge regulations so long as they are following "best management practices" devised by the very farm-friendly Department of Agriculture.) CLF is funded to oppose development, not farmers.

On June 26 the Water Resources Board, over the objections of both Lowe's and ANR, bought the CLF's argument. The Board denied the permit, and on August 30 refused to reconsider its action. Ironically, the denial forbids what would be the most modern and effective stormwater management system in the Potash Brook watershed. Scores of existing properties have no stormwater management system at all.

Ironically, though CLF deplores the alleged vices of "sprawl", the proposed growth at the already urbanized Shelburne Road location is the opposite of "sprawl". If CLF kills off Lowe's, developers may start looking at places that have few stormwater runoff problems, miles away from the Lake and from existing urban development.

The next legislature should revise the law to make it crystal clear that while ANR should accelerate its efforts to improve the water quality of the Lake, new developments like Lowe's will be permitted if they incorporate the kind of advanced stormwater management that Lowe's was happy to agree to install. The CLF should be given one less opportunity to shut down responsible economic growth.

Thirty Years of Straightpiping
August 2000

Over the past thirty years Vermont has been on a "save the environment" tear. Beginning with the enactment of Act 250 and subdivision regulations in the early 1970s, the State has extended its regulatory powers to a once unimaginable extent. Driving this extension has been a very justifiable opposition of a great majority of Vermonters to pollution of our air and water.

So why, over these thirty years, have 14 homes in East St. Johnsbury continued to straight pipe sewage into the Moose River, with full knowledge of town and state environmental officials?

The 14 homes in question were built long before the current water quality laws. Some of them are on very small lots with a high seasonal water table. Others lots have ledge and thin soils unsuitable for backyard leach fields. The state Agency of Natural Resources could have issued an order to stop the discharges into the river, but that would have made the homes uninhabitable. So rather than evict 14 families from their homes, ANR decided the problem was a town problem.

The state suggested that St. Johnsbury extend its municipal sewer line two miles to reach the affected lots. But the town had recently bonded for a major sewage treatment plant, and the selectmen were nervous about going back to the taxpayers for another $3 million just to assist a handful of families. So the town began a series of studies which continually pushed forward the need to make a decision that would cost real money.

And the law constantly stood in the way. How about building a mini-treatment plant and discharging the treated water into the river? State law says that only municipalities can make a direct discharge into a watercourse. The 14 families would have to create a wholly new municipality, and they would have to hire a skilled technician to manage the touchy ultraviolet disinfection process. Not practical.

How about using the state's water quality revolving loan fund to underwrite a new on site disposal system? Sorry. That could only be used for municipal systems, not private systems.

And so it went , for decade after decade. Meanwhile, ANR required a landowner half a mile upstream from the straightpipes to spend $17,000 on an earth berm around his truck yard, on the rationale that dust - dust! - could possibly work its way into the Moose River and maybe plug up tiny little cracks in the stream bed where undetected trout might want to lay their eggs. But neither state nor town could find a way to stop the straightpiping.

This year saw an apparent breakthrough. A little noticed provision in the capital appropriations bill now allows the revolving loan fund to be used for private systems, if managed by a town. ANR engineers are now at work on a system that would collect sewage from the 14 homes and others, and pump it to a place where a large leach field can handle it.

Now, why has the East St. Johnsbury pollution problem, and others like it in Cabot and Shoreham, persisted all this time, while five governors professed their ardent devotion to the cause of a clean environment?

There are no villains working to preserve straightpiping. But the structure and rules of the governmental system itself give the parties involved many ways to shift and diffuse responsibility, or stall for time in the hope that problems will go away.

The ever-expanding web of laws and regulations, bureaucratic jurisdictional lines, budget demands, and political considerations can make simple problem solving by government into a major task - in this case, one that has gone 30 years without a solution. Can anyone doubt that Walt Disney World, or the Navy Seabees, or the Nature Conservancy would have had this problem solved years ago, if the government kept out of their way?

The environmental enthusiasm of many politicians starts with pollution fighting, but then turns into enthusiasm for sweeping land use control schemes - not to stop pollution, but to vest ever more power in the government over land and land owners. Maybe it's time Vermonters put people into office who will spend more time solving problems like raw sewage in our rivers, and less time promoting increased government control over the non-polluting use of our land.

The People vs. the Despots
January 1998

Unaccountable power has been the subject of much concern among the political theorists of the English speaking countries. Cromwell's Roundheads of 1649 devised a crude if effective means of making Charles I accountable (they lopped off his head ) . Harrington, Sidney, Locke, and Burke sought a less violent solution to the problem, and the debate carried over into the political thought in the Colonies.

The consensus solution devised by 19th century Americans can be found in Article 6th of the 1777 Constitution of Vermont:

    "That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times in a legal way, accountable to them."

With that democratic constitutional principle in mind, it is worthwhile to examine one particular type of governmental officer in Vermont, and inquire how that officer is accountable to the people.

That officer is the District Environmental Commissioner.

When the Davis administration first conceived what was to become Act 250, permits for developments were to be issued by state agencies. Objection was made that these state employees were not "close to the people", and that there should be "local" civilian review of project applications. The result was, eventually, nine three-member citizen panels operating from regional offices in Rutland , Essex Jct., Springfield , Barre and St. Johnsbury.

The three environmental commissioners in each district are appointed by the governor. The Governor, however, has no control over their performance in office, and can't remove them before the end of their terms. The district commissioners are somewhat accountable (for following the rules) to the state Environmental Board, whose members are also appointed by the governor and not subject to his control or removal.

In 1970 the criteria for getting a permit were vague, and there were no precedents to guide the commissioners. In 1973 the legislature expanded the permit criteria and added pages of detailed requirements. In addition, 27 years of rules of practice and precedent have now accumulated. What began as a simple "citizen review" based on the common sense of ordinary Vermonters has become much closer to an administrative law court . Indeed, it has turned a ritual kabuki dance of very expensive lawyers, architects and engineers, performing before a very different kind of commissioner.

As the nature of the commission's work has changed, so have the commissioners. Typically a commissioner can be engaged 6-8 days a month, plus a lot of homework. Instead of ordinary citizens taking a day or two a month to look over applications, the commissions now tend to be comprised of people who can afford to devote a lot more time to the task. And all too often, the incentive to get on a commission seems to be the opportunity to impose arbitrary demands on applicants in the name of protecting the environment or any number of other rationales. In short, service on a district commission has come to appeal to authoritarian personalities, and woe unto the applicant who dares to challenge their dictates.

To whom, if anyone, are these little despots accountable? Certainly not to "the people". The legislature has no control over their actions. Even the governor, who can instruct, discipline, transfer, or remove his top appointees, can't replace district commissioners until their term of service expires, and if the Governor sought to tell them how to perform their job it would be a political scandal.

There is no perfect solution to the problem of making unaccountable government agents accountable to the people. But Sen. Julius Canns (R-Caledonia) has come up with at least a good solution. Like many other Caledonia county residents, Canns was outraged at a 2-1 district commission ruling denying the Town of Lyndon a permit for a gravel pit, on the ridiculous grounds that a gravel pit was a hideous blight, the mere sight of which would "shock the conscience" of the average Vermonter. This, after the proposed pit had been unanimously approved at Lyndon town and school district meetings.

Canns' solution is a bill (S. 197) which would give the selectmen of towns in each Act 250 district a chance to ratify or reject any commissioner reappointed by a Governor. If a majority of all the sitting selectmen fail to ratify a reappointment within 60 days, the reappointment fails, and the Governor has to start looking for somebody else to serve.

In District 7 (Northeast Kingdom) there are probably 140 selectmen and city councilors. If the Governor wanted to reappoint the two commissioners who notoriously overrode a local community's unanimous wishes, not to mention all common sense, he would have to receive 71 signed assents. Rather than risk an embarrassing rejection, the governor might well let a controversial commissioner go, and find someone new.

As a check on unaccountable power, it's not perfect. The check doesn't come into play until the time of renomination. But Canns is on to something here: "The people", the descendants of "the people" by whom and for whom the Vermont constitution was written, are tired of being pushed around by little despots who, once in office, are answerable to nobody. They want some democratic method of booting them out. They deserve to get it.