by Colin Woodward
The Portland Phoenix news story
It was no surprise that Governor Paul LePage would seek to reform Maine’s environmental regulations. He campaigned on a pledge to “get government out of the way” to “allow Maine’s small businesses to create jobs.” After the election, his transition team put together a series of “Red Tape Workshops” where Maine businesspeople clamored for a streamlining of the regulatory process, which even environmentalists concede can be unnecessarily slow and frustrating.
But when LePage unveiled his “phase one” regulatory wish list, many Mainers were gobsmacked. Instead of concentrating on removing alleged impediments to job growth, his 64-point plan amounted to a wholesale rollback of decades of environmental and product safety protections, including many measures that had no obvious benefit to Maine businesspeople, jobseekers, or the economy, and a few that were as likely as not to damage all three.
Indeed, with its calls to allow toxic substances back in baby bottles, children’s toys, blankets, and municipal landfills, the list suggested the governor was more concerned with the interests of out-of-state corporations than the plight of local entrepreneurs.
The governor has continued to insist that “most of the proposals” he developed came “directly from business owners and managers who have attended the Red Tape Workshops,” but the wish list itself tells a different story: it literally has the marks of corporate lobbyists all over it.
The official copy of the wish list LePage submitted to the legislature has lobbying powerhouse PRETI FLAHERTY BELIVEAU & PACHIOS’s distinctive eight-digit document tracking numbers stamped on each page, suggesting it originated not in Augusta, but at the law firm’s offices at Portland’s One City Center.
“For God’s sake, if you’re going to stab Mother Nature in the back, at least wipe your prints off before you drop the knife,” said Representative Bob Duchesne of Hudson, the ranking Democrat on both the environment committee and the new regulatory-reform committee, which is tasked with reviewing the wish list. “I think this shows the lobbyists created the list and gave it back to the governor, who called it his own.”
Duchesne’s hunch is correct. The governor’s communications director, Dan Demeritt, confirms that the document was compiled by Ann Robinson, the head of Preti’s lobbying group, who served as co-chair of LePage’s transition team and remains his head advisor on regulatory reform. “Ann Robinson is still advising the governor on regulatory reform matters,” Demeritt told us last Friday. “Her computer is at Preti Flaherty, so that’s why it has their stamp on it.”
“She’s far from having decision authority on the final package,” he continued. “The governor has looked through the list and his adviser as looked through the list and the governor said yes or the governor said no. But she’s helping us stay organized and to put stuff together for us.”
Organized, perhaps, but Robinson is hardly a disinterested observer. She and her colleagues at Preti Flaherty lobbied against several of the laws slated for repeal on behalf of corporate clients. Since the inauguration she’s re-registered as the official lobbyist for PHRMA, drug maker MERCK, the TOY INDUSTRY ASSOCIATION OF AMERICA, and other corporations that will profit from the changes. Robinson — who didn’t return our calls — has found herself in the enviable position of being able to ghost-write the governor’s regulatory policies on behalf of her paying clients, even though they don’t manufacture anything in Maine.
Instead of developing a blueprint for rethinking rules and procedures that might hinder job growth, LePage appears to have outsourced the task to corporate lobbyists, resulting in a package geared to destroying Maine’s regulatory precedents lest they spread to other parts of the country. “Stopping precedents is an important factor, and many of these businesses and industry associations play on a national level,” says Ron Schmidt, chair of the University of Southern Maine’s political science department. “They’re not picking and choosing to intervene in states because they want to invest in them, but because they think they have an opportunity to assist clients. And LePage is an opportunity.”
And it’s not just Preti that’s had the governor’s ear. LePage named PIERCE ATWOOD managing partner Gloria Pinza to his transition team, which, as the lobbying firm’s website points out, was “providing input into policy proposals and identifying skills needed to fill key positions” in the new administration. It may not be a coincidence that the governor wishes to nominate Pierce Atwood lobbyist Patricia Aho as deputy commissioner of the Department of Environmental Protection.
“I think you can safely say that there is unprecedented access for big out-of-state companies to influence legislative proposals in the state of Maine,” says Matt Prindiville of the Natural Resources Council of Maine, who lobbied on behalf of some of the laws and regulations the governor has targeted. “These companies that lost in the legislature are looking to sneak these proposals through the back door under the guise of regulatory reform.”
“Repealing these laws will not create a single job in Maine,” Prindiville says. “There isn’t a single Maine businessperson who says, ‘you know, the reason I can’t grow my business is that law that gets brominated fire retardants out of mattresses or BPA out of babies’ bottles. It’s ludicrous.”
By contrast, the motivations of Preti Flaherty and Pierce Atwood’s clients are easily documented. Lobbying disclosures on file with the state Ethics Commission show both PhRMA and Merck paid Robinson to defeat the KID-SAFE PRODUCTS ACT, a 2008 law that phased out toxic chemicals in toys, car seats, baby clothes, and other children’s products. The AMERICAN PETROLEUM INSTITUTE and drug maker ASTRAZENECA paid Aho to do the same. The governor’s wish list calls for “revisions to prohibitions of chemicals and materials in products” saying that “if the state is going to regulate consumer products at all, it should only do so when clearly justified on risk-benefit or cost benefit basis.”
(We asked Demeritt, LePage’s spokesman, who requested this language be included. “That came out of our reform subcommittee group during the transition,” he said, but when we asked who was in that group, Demeritt abruptly cut off the interview, saying he had “some things to do.”)
Another of Robinson’s clients, the Toy Industry Association of America, was among the out-of-state interests that tried to stop the Bureau of Environmental Protection from banning the use of BISPHENOL-A in baby bottles, sippy cups, and other food containers last year. BPA has also been banned in the European Union, Canada, Minnesota, Connecticut, and Chicago; Wal-Mart and other major retailers have stopped selling baby products containing the substance. LePage’s wish list seeks to “Repeal BPA rule and rely on federal EPA and FDA standards,” which permit the substance. (Other interests fighting the ban include the AMERICAN CHEMISTRY COUNCIL and the infant-formula divisions of PFIZER and NESTLE.)
A little context: the relevant federal law – the Toxic Substances Control Act – is notoriously weak, requiring that regulators – not producers – present “substantial evidence” of toxicity before banning a substance. The Government Accountability Office has repeatedly recommended Congress change this, as the U.S. Environmental Protection Agency couldn’t even successfully ban asbestos under current provisions. In the absence of federal action, states like Maine have passed more stringent standards to protect their citizens, despite opposition from industry.
“Not a single Maine business testified in opposition to the regulations on BPA,” says Amanda Sears, associate director of the Environmental Health Strategy Center in Portland. “The opposition to these proposals from these corporate lobbying firms is entirely about national precedent setting. These industries haven’t had the power here that they have in DC to stop these things from being enacted.”
Similarly, Aho and her Pierce Atwood colleagues represented the Dallas-based BROMINE SCIENCE AND ENVIRONMENTAL FORUM, an alliance of four chemical companies that manufacture a toxic fire retardant that was banned in Maine in 2007. (Vermont, Washington, and Oregon also prohibit it.) LePage’s wish list would repeal the ban, as it exceeds federal standards. The legislature may be inclined to play along. The two member companies that are based in the US —ALBEMARLE and CHEMTURA — spread $20,000 out among various legislators via their questionably named Sound Science for Maine PAC. Recipients included Senator John Nutting (D-Leeds), Representative Kathleen Chase (R-Wells), and Representative Stephen Hanley (D-Gardiner), and the personal PACs of Assistant House Majority Leader Andre Cushing (R-Hampden); Senate Majority Leader Jon Courtney (R-Springvale), and Senate President Kevin Raye (R-Perry).
The governor also seeks to reverse a suite of PRODUCT-STEWARDSHIP AND RECYCLING LAWS “to develop a policy that ensures that manufacturers do not have to pay to recycle their consumer products and that these standards do not exceed those set in federal law” — a move that would effectively reverse Maine laws for capturing or recycling e-waste, mercury-bearing thermometers and car batteries, and other products. This will please PhRMA and AstraZeneca, who hired Preti to fight last year’s product-stewardship law. Both entities also gave generously in support of LePage’s candidacy last year, investing $140,000 and $344,000 respectively via the Republican Governors Association’s Maine PAC.
This provision troubles Maine’s municipalities. “Product stewardship has positive benefits, because in Maine, we’re the ones responsible for solid waste disposal,” says Geoff Herman of the Maine Municipal Association. “These laws get the manufacturer to be at least partially responsible for recycling hazardous stuff, so they at least share with property-tax payers the responsibility for their products.”
Other provisions in the governor’s plan favor politically connected Maine companies. Take the governor’s desire to repeal the year-old ACT TO ENSURE THAT REPLACEMENT CULVERTS PERMIT FISH PASSAGE. Under George Smith, the Sportsman’s Alliance of Maine vigorously supported the measure, which recognized that brook trout and other species can’t swim through the high-velocity currents that can occur in culverts that aren’t big enough. “We were a strong voice for that on account of the range of wildlife that are affected,” says SAM’s new executive director, Matt Dunlap. “It’s important to keep these protections in place.”
We asked Demeritt who had requested the reversal of the culvert rule and he told us it was the Maine Municipal Association. Herman of MMA said this was not the case, although some members may be agitating against the measure, which could cost towns extra money. Other possibilities: J.D. IRVING, PLUM CREEK, and the MAINE TURNPIKE AUTHORITY (the latter a Preti client), all of whom lobbied against the law in 2009.
So in cases like this when Maine industries disagree, what criteria does the governor use in deciding whose side to take? “His judgment,” Demeritt answered, and refused to get more specific. “The guy is used to making decisions and that’s what he’s done.” Demeritt also refused to say who had put forward the idea to REZONE 30 PERCENT OF MAINE’S UNORGANIZED TERRITORIES FOR DEVELOPMENT, a measure sure to be controversial with wood-products, tourism, and environmental interests.
LePage’s election rival, environmental attorney Eliot Cutler, says he’s not surprised by the governor’s wish list, but thinks it unwise. “What discourages a lot of people in making investments in Maine is that it takes so long to get an answer, and those kinds of complaints deserve a lot of attention,” he says. “Until we’ve tried to see if we can make the regulatory process work better and more efficiently and in a less costly way, we shouldn’t jump to make massive changes in the substance of our rules, which go to protect the very values in Maine that makes us different and better.”
“It was our understanding that the governor wanted some reforms to create jobs, but it’s not clear where the jobs are coming from in these proposals,” adds Jennifer Burns Gray, staff attorney with Maine Audubon. “We’re open to trying to improve the process, but not to damage our core protections.”
Meanwhile, the governor’s team is busy working on “phase two” and beyond. “We’ve sent a down payment to the Legislature and I am telling you it’s a down payment, because we are just beginning,” LePage told the Associated General Contractors of Maine meeting January 27. “First, we get the environmental side, then we’ll get the labor side, then we’ll get the (agriculture) side, and by the time we’re done, we will be having what we call a balance between the protection of the environment and decent paying jobs.”