by Pete Didisheim, NRCM Advocacy Director
Senator Saviello, Representative Hamper, and members of the Committee on Environment and Natural Resources. My name is Pete Didisheim. I am the Advocacy Director for the Natural Resources Council of Maine, and I appreciate this opportunity to testify in opposition to LD 614.
Although this legislation ostensibly is intended to “expedite” the permitting process at Maine’s Department of Environmental Protection and Land Use Regulation Commission, we are not convinced that it would meet that objective. To the contrary, we believe the bill could increase costs, introduce new delays, and give rise to new legal challenges that would have the combined effect of damaging, and not improving, the permitting process in Maine.
Although existing law allows the DEP Commissioner to enter into agreements with individuals outside of the Department to review applications, it is not clear that this authority was envisioned to include the role of reaching (or recommending) an actual decision on the application. LD 614, however, appears to require that both the review and the permit decision be outsourced if processing of the application is lagging. Taken literally, LD 614 could potentially put individuals who work for outside law firms and consulting firms in the role of deciding whether a Walmart, Casino, or major subdivision should be approved – which seems untenable. It could also lead to inconsistency in decision making as consultants working on an ad hoc basis would not necessarily apply policies and rules in a consistent way, nor be concerned about the precedent their decisions would be setting.
The bill makes outsourcing of the permitting process obligatory if a decision cannot be rendered within the established deadline. This requirement raises serious questions about the appropriate roles of government and the private sector. Environmental consulting firms that are in the business of helping clients get their permits would have an obvious self-interest in reaching favorable permit decisions. One could easily imagine an increase in legal challenges to permit applications if external firms played a significant role in rendering judgments about whether particular applications met the appropriate legal standards.
More practically, there is no reason to believe that a private contractor will be speedier than DEP or LURC. Indeed, if the contract with an external entity is not entered into until after the first 30 days of the review period (as the bill contemplates), then it would be virtually impossible for that private contractor to review the matter in less than the 30 days that remain. There is also the question of who would pay the external contractor. The cost of outsourcing (which is not paid for by the applicant under this bill) would be an added expense for the state, an expense that might be very substantial. Alternatively, if the applicant were to be charged, it raises a question of equity among applicants. Which of them would have to pay for the review of their applications, and which would be paid for by the state? If applicants are not charged, then the anticipated cost of this outsourcing of the application process needs to be reflected in a fiscal note to this bill.
NRCM opposes LD 614 because privatizing the permitting process raises serious issues about accountability, conflict of interest, timeliness of review, and costs. For these reasons, we urge the committee to vote Ought Not to Pass on this legislation.