AUGUSTA — The legislative panel working on a bill to streamline Maine’s regulatory process signaled Monday it likely will drop a proposal by Gov. Paul LePage to alter the power dynamic between the judicial and executive branches of government.
The proposal, submitted to lawmakers on the Committee on Regulatory Fairness and Reform to be included in L.D. 1, aims to make it less likely that the courts would defer to state agencies when ruling on permit and other regulatory decisions.
But that change could actually make it harder on businesses going through the permitting process, according to a bipartisan group of four lawmakers who heard from the private sector during a meeting last Friday.
Most court challenges have involved regulatory permits that have been approved, not permits that have been denied, according to the Attorney General’s Office.
“Remember, we’re trying to find a way to expedite the permitting, not to make it last longer,” said state Sen. Tom Saviello, R-Wilton, one of the four lawmakers.
Currently, judges defer to rulings or determinations by agencies such as the Department of Environmental Protection and Land Use Regulation Commission. Unless there is a serious issue with how a permit decision is made, the court assumes the agency acted appropriately.
When the court decides against an agency’s decision, the case goes back to the same agency for a new finding.
Making the courts less likely to defer to state agencies could mean more permit approvals being sent back for review, according to Bob Duchesne, D-Hudson.
“This proposal would actually add to that delay and confusion and uncertainty,” he said. “The second takeaway was, even if you did it this way, the court doesn’t solve the problem, it just sends it back to the agency.”
State Rep. James Parker, R-Veazie, said the proposal was “pretty negatively” received by those who spoke on Friday, which included the Maine State Chamber of Commerce, the Maine Forest Products Council and the Conservation Law Foundation.
Linda Pistner, chief deputy attorney general, told lawmakers on Monday that judicial deference to the executive is consistent with both the Maine and U.S. constitutions.
“Courts are very cautious about reversing an executive agency or an administrative agency decision, the same as they are very cautious about saying that a statute that you would pass is unconstitutional,” she said.
Dan Billings, chief legal counsel for LePage, said the governor’s office “obviously” has a different perspective on the issue.
“Some of that comes about from myself and some of the people who helped put together this proposal coming from a private-sector orientation, versus folks in the Attorney General’s Office who are career folks who are in the business of defending agency actions,” Billings said during Monday’s meeting.
Lawyers, and people in general, are more comfortable with the status quo, he said.
Billings disputed one of the underlying justifications for judicial deference — that agencies would be more consistent than judges in their interpretations of the law.
“I think my boss, the governor, hopes that in some cases people he’s put in charge of administrative agencies will interpret laws and rules and regulations differently than the folks who were hired by the last governor,” Billings said. “To me, the law should have one meaning. But I think the system we have now allows that kind of political decision-making.”
Lawmakers on the panel hope to finish drafting their own legislation by the end of the month.
LePage can submit a bill to the Legislature at any time that includes any of his reform proposals that lawmakers decline to include in L.D. 1.
MaineToday Media State House Writer Rebekah Metzler can be contacted at 620-7016 or at:
rmetzler@mainetoday.com
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