On May 4, 2022

H.492 will help get landmark Act 250 law back on track

By Jon Groveman

Editor’s note: Jon Groveman is a policy and water program director for the Vermont Natural Resources Council.

Vermont’s Act 250, our one-of-a-kind statewide land use program, is often synonymous with the state’s environmental ethic. Act 250 has served Vermont well for more than 50 years, mitigating the impacts of large-scale development on natural resources, working lands, and sprawl that have been widespread across the country.

However, Act 250 is not as effective as it used to be — and not as effective as Vermont needs it to be to address current environmental challenges, including climate change and climate migration, and to help ensure that the Act 250 process is as predictable and efficient as possible.

The need to strengthen Act 250 has been the focus of much discussion and debate in the Legislature over the last six years. In 2017, a legislative commission was formed to investigate how to modernize and improve Act 250.

The commission’s report, “The Next 50 Years,” made a number of recommendations to improve the law, including — and very importantly — to improve how Act 250 is administered by restoring a version of the former Environmental Board.  The commission noted that improving how Act 250 is administered will bring greater consistency and clarity to the process, something that everyone on all sides of the how-to-improve-and-modernize-Act-250 debate have called for.

When Act 250 was adopted in 1970, a crucial part of the system was that nine regional district commissions would review permit applications, and the program would be administered by an expert Environmental Board that would also hear appeals of district commission decisions. The district commission process was designed to be accessible to citizens and reflective of Vermont’s regional differences.

The Environmental Board was made up of nine Vermonters from various backgrounds, a diverse membership with deep knowledge of Act 250 that allowed the board to resolve appeals of district commission decisions while bringing clarity to how to interpret the ten Act 250 criteria.

For example, the criteria prohibit undue water and air pollution and undue adverse effects on aesthetics. They prohibit development that would significantly imperil necessary wildlife habitat. The board brought these criteria to life through its decisions explaining what an applicant would need to do to meet the criteria.

In 2004, the Environmental Board was eliminated by the Vermont Legislature. After more than 30 years of decision-making, there was a desire among some to move appeals to the Superior Court. Proponents promoted the change because it felt the Environmental Board process was not formal enough, did not function under court rules, and often resulted in decisions that included policy guidance rather than simply resolving the dispute among parties to an appeal.

The change became part of a larger legislative compromise that addressed how other environmental permits in Vermont were handled, and who could appeal Act 250 decisions.

The Vermont Natural Resources Council and others raised concerns that eliminating the Environmental Board would significantly harm Act 250. The Natural Resources Council feared that the court appeals process would be expensive, complicated and, therefore, difficult for citizens to navigate.

We worried that replacing the varied perspectives of nine Vermonters with one judge to hear appeals would drastically change the nature of Act 250 decisions. We were concerned that because courts are set up to allow individual parties to resolve disputes, Vermont would lose a crucial component of the Act 250 program — to bring clarity to the Act 250 criteria.

Unfortunately, all of the Vermont Natural Resources Council’s concerns have come to fruition.

Since the Environmental Board has been eliminated, the Act 250 program has stagnated. The program has lost the guidance that was provided by the Environmental Board, which has led to less clarity for district commissions, applicants and citizens participating in Act 250. In addition, court appeals have proven to be expensive and burdensome.

H.492 represents a major step forward to improve and modernize Act 250. The Legislature should pass this important bill this year.

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