Maine lawmakers poised to diminish agency power to interpret rules

AUGUSTA — Lawmakers will soon decide whether judges should give less weight to decisions made by state agencies.

Current Maine law requires justices to give strong deference to departmental rulings on matters such as development permits or enforcement of insurance laws. But that could change if lawmakers approve LD 1546, a bill quietly moving forward that would require judges to review regulatory rulings without historical precedent in the event of an appeal.

Supporters of the bill, including the LePage administration, argue it guards against institutional bias at agencies where departmental culture can lead to rulings that contradict the Legislature's initial reason for the regulation.

Dan Billings, Gov. Paul LePage's chief legal counsel, said the proposal also would give those people appealing agency decisions a better chance at a fair ruling. Right now, he said, someone who challenges a departmental ruling is compelled to work with the agency because the state's deference law gives them little chance of winning in court.

"We think it brings the law more to the center and would give agencies an incentive to be a little more reasonable," Billings said. 

Opponents, meanwhile, say the bill could lead to more lawsuits that could ultimately halt projects such as wind farms and other developments. The bill was originally included as a provision of the Legislature's regulatory reform package, LD 1, approved last year.

However, according to Sen. Seth Goodall, D-Richmond, the provision was jettisoned by lawmakers after business owners worried it would further slow development by allowing opponents to hold up projects in court.

Goodall said agencies that deal in land-use permitting green-light 98 percent of applications. 

"With this bill, you could have developments that are on the verge of putting a shovel in the ground suddenly have to stop because of a lawsuit," he said. "Decreasing agency deference could delay projects and increase costs. That's just something we can't afford when the state is trying to encourage economic development."

The state's attorney general also has expressed concerns about the bill. Linda Pistner, testifying on behalf of the attorney general last month, said it could lead to inconsistent interpretation of regulations because judges review appeals on a case-by-case basis. Pistner, in a May 2011 letter to the Legislature's Judicial Committee, also warned that it could significantly increase costs to the Attorney General's Office, which is responsible for defending agency decisions in court.

The attorney general originally expressed concerns that the bill would create problems with the separation of powers provision in the Constitution. He has backed off that position since lawmakers on Thursday approved a language change. 

The bill, sponsored by Sen. Debra Plowman, R-Hampden, emerged from committee with a 7-5 vote along party lines.

Goodall said the proposal could stifle job development, a concern echoed by the Maine Renewable Energy Association. Dan Riley, representing MREA, testified that the proposal would prompt wind power opponents to pursue litigation and "prolong the already lengthy regulatory permitting process that the industry deals with on a regular basis."

Goodall echoed the attorney general's recommendation: If state agencies are not enforcing rules based on legislative intent, then the Legislature should deal with it.

"If there are problems with regulations, they should be addressed by the Legislature either through rule-making or changes to the regulations," Goodall said. 

Pistner pointed to court cases showing that judges often gave agency deference on ruling because the agency had the expertise in administering the regulation.

Pistner, in her testimony last year, said if courts were precluded from giving deference to an agency’s decisions or interpretations of statutes and rules, then the regulated would have "no incentive to be guided by an agency’s interpretation."

"That, in turn, would give the regulated community every incentive to appeal all agency decisions and to litigate numerous issues, large and small," she wrote, adding that the bill would "promote a substantial amount of litigation." 

Billings countered that the courts would still give deference to an agency's statements of fact. It was its interpretation of rules that could be challenged, he said. 

Billings said the change reflected Gov. Paul LePage's philosophy, even if it could result in diminishing his administration's power. The governor has political appointees to all state agencies. The appointees can can change the culture and goals of an agency. 

"This bill gives (LePage's) appointees less power than they have today," Billings said. 

An analysis provided by the Attorney General's Office shows that Maine is one of 15 states with laws giving strong agency deference. Billings said LD 1546 would give Maine intermediate agency deference. 

The Judiciary Committee vote means the bill will get kicked to the Senate for a floor vote later this month. 

smistler@sunjournal.com

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Comments

Food for thought

[This comment has been removed pending administrative review]

Alice Barnett's picture

deference to agency

I watched a BEP noise ruling and heard hours and hours of statements from DEP and a non INCE sound man.

Record Hill Wind is causing noise damage to people in that area.

I know because I am local and people talk , to their dentist , to a blog, on facebook.

Problem is DEP has no noise complaint protocol.

A judge has nothing to go on except what DEP says.

Yes GRID scale WIND opponents will go to court because the people too close to these turbines have rights too.

Alan Michka's picture

Huh?

"Dan Riley, representing MREA, testified that the proposal would prompt wind power opponents to pursue litigation and 'prolong the already lengthy regulatory permitting process that the industry deals with on a regular basis."

Lengthy regulatory permitting process? Are you kidding? Hasn't the DEP approved every wind project under its review since 2008 in under 180 days? If I'm not mistaken, the only case that has extended beyond the statutorily allowed expedited review period was done at the request of the applicant, First Wind.

Would Mr. Riley prefer that wind developers just run down to the Justice of the Peace and pick up a permit?

Alan Woods's picture

"Would Mr. Riley prefer that

"Would Mr. Riley prefer that wind developers just run down to the Justice of the Peace and pick up a permit?"

Yes, he would.

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