AUGUSTA – Maine House Democrats said they were disappointed by Attorney General William Schneider’s decision Wednesday to decline their request, at least temporarily, for a written opinion on whether Darryl Brown is eligible to lead the Department of Environmental Protection.

In a letter responding to a request made Monday by House Democratic leadership, Schneider said it would be inappropriate for him to weigh in now because he is helping Brown compose his response to a similar inquiry by the U.S. Environmental Protection Agency.

That response is due to the federal government by May 1 — pushed back from an April 15 deadline at the request of Brown and his private attorney.

“The state’s submission to the EPA may effectively answer the questions you have raised,” Schneider wrote. “If you believe that issues remain after the response to the EPA, I will of course consider an opinion request at that time.”

Brown was appointed by Republican Gov. Paul LePage and sworn in Feb. 1 as commissioner of the DEP. His eligibility is in question because, under Maine law, anyone who in the two years before their appointment has earned at least 10 percent of their income from clients receiving permits through the federal Clean Water Act may not be commissioner.

Similar language in federal law prompted an environmental group to ask the EPA to begin an informal investigation regarding Brown, who owns Main-Land Development Consultants, an environmental consulting firm. Brown has said he is confident that his earnings did not meet the 10 percent threshold.

House Minority Leader Emily Cain, D-Orono, said she appreciated Schneider’s timely response but is concerned that, until an opinion is issued, ambiguity will hang over Brown and the work of the DEP.

“We are disappointed that the people’s legal counsel can’t provide us with simple guidance on this issue to put at ease the minds of businesses that are currently working with the DEP on permitting issues,” she said. “Those businesses, we believe, deserve clarification to ensure confidence in that work with the DEP.”

Cain has said she hopes Brown will ultimately be found eligible to serve as commissioner.

Steve Hinchman, an environmental attorney who filed a petition asking the EPA to investigate Brown’s eligibility, said he doesn’t understand why Schneider is declining to issue an opinion.

“I find it confusing,” said Hinchman, who represents the Androscoggin River Alliance. “I thought the (Democrats’) request for the opinion was about state law matters. … There are valid state law questions raised here and it’s the AG’s job to enforce state law. But they seem to be saying their job is to represent Commissioner Brown.”

Hinchman said it is the attorney general’s job to defend Brown when he acts on behalf of the DEP, but this situation is different because the question is about his eligibility to serve — not the action of a state agency.

“Normally, you would think (Brown) could handle that with a private attorney, that he doesn’t need the AG to represent him,” Hinchman said. “In fact, the AG should be representing the citizens of the state and determining whether this appointment complies with state law.”

Hinchman agreed with Cain that Schneider’s decision prolongs questions about the DEP’s actions under Brown.

“What you are going to be left with is uncertainty and confusion and longer processing, which is the opposite of what the administration’s goals are,” he said.

Brown said earlier this week that the issue has no effect on his ability to lead the department effectively. “I just can’t be distracted by this kind of thing — there are too many far more important jobs for me to be doing,” he said Monday. 

MaineToday Media State House Writer Rebekah Metzler can be contacted at 620-7016 or at rmetzler@mainetoday.com

 

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