Administrative Assault

“So, where you from?”  “I’m from Maine.”  “Maine?…[pause]…[perplexed facial expression]…[hesitation and/or condescending chuckle]…What’s in Maine?”  Let me, once and for all, explain to those of you unfamiliar with the Vacationland.[i] First and foremost, there is fresh, delicious, breathable air.  But beyond that, Maine has everything any nature nut like me could possibly want: ocean, mountains, wetlands, sand dunes, rivers, rocky coasts, lakes, forests, lobsters, and moose.  There is hiking, skiing, kayaking, snowshoeing, canoeing, biking, white water rafting, rock climbing, and, of course, plenty of relaxing.  During the summer months, Maine draws huge numbers of tourists (though evidently none of those with whom I have had the pleasure of having the above-mentioned conversation).  Indeed, tourism drives the economy.  People visit Maine for its natural beauty; they are not in search of those sun-and-sky obstructing buildings they can find in, say, New York City.  Why the State’s new administration has come to office with an anti-environmental approach is therefore profoundly alarming and disappointing.

Several of the major environmental advocacy organizations in Maine, the most vocal of which being the Natural Resources Council of Maine (NRCM) and the Conservation Law Foundation (CLF), have described the LePage Administration’s and Republican lawmakers’ efforts thus far this year as nothing less than “a widespread assault” on Maine’s environmental laws.[ii] Within two months of Governor LePage taking office, a record fifty bills had been proposed for changes to the State’s environmental laws.[iii] To name but a few changes these bills seek to effect, they include amending shoreland zoning laws to allow for increased development; eliminating some recycling policies; putting a moratorium on wind development; weakening wildlife protection; setting a six-year statute of limitations for enforcing environmental violations; and allowing more development of Maine’s Northern Woods.[iv] Why, you ask?  Business, of course![v]

Environmentalists were well aware of gloomy days to come when LePage won the state election, but the transition is proving more difficult than expected.[vi] It is a staunchly pro-business administration, apparently perceiving the state’s environmental laws and regulations as major obstacles to economic development. Allow me to elaborate.

One particularly egregious example was Gov. LePage’s opposition to a bill banning Bisphenol A (i.e., BPA) from products sold in the state.  If enacted, LD 412 will authorize the state to adopt a BPA phase-out rule.[vii] Maine would be the ninth state to prohibit BPA.[viii] Until earlier this week, LePage argued that prohibiting BPA and similar chemicals in manufactured goods sends the wrong message to companies looking to conduct business in Maine.  He went so far to say that there is no science indicating that BPA is a problem, despite the fact that public health officials have linked the chemical to breast and prostate cancer as well as reproductive damage.[ix] In response to concerns over the use of BPA in baby bottles, he ever-so-eloquently remarked, “The only thing I heard was that if you take a plastic bottle and put it in the microwave and then heat it up, it gives off a chemical similar to estrogen, so the worst case is some women might have little beards….”[x]

Remarkably, it appears that LePage has reconsidered his opposition.  DEP Commissioner Darryl Brown, serving as the Administration’s representative, declined to take a position for or against the bill when testifying before the Legislature’s Environmental and Natural Resources Committee on March 25.[xi] Rather than explain the sudden attitude shift, Brown limited himself to expressing his office’s concern with encouraging outright prohibitions on manufacturing chemicals as mechanisms for promoting environmental and public health and safety.[xii] His pitch luckily fell on deaf ears.  The Commission unanimously voted LD 415 ought-to-pass, and it now awaits floor action.[xiii]

In another illustration, there has been considerable debate between conservationists and Republicans over proposed bills that would weaken restrictions on development near vernal pools.[xiv] Vernal pools – shallow depressions that fill up with water during parts of the year – often exist in forested wetlands.[xv] “Significant” vernal pools are those that serve as habitats for endangered species.[xvi] As of right now, a permit is required to build within 250 feet of a significant vernal pool.[xvii] Republicans want that number down to just 75 feet, declaring that 250 feet is too restrictive and hurting developers.[xviii] And yet, no permit has been denied because of a significant vernal pool since 2006.[xix] How, then, is development being hurt?

I fear Senator Muskie, born and bred in Maine, would be appalled.


[i] No, I was not clever enough to make up this nickname myself.  See List of U.S. state nicknames, Wikipedia, http://en.wikipedia.org/wiki/List_of_U.S._state_nicknames (last updated Mar. 3, 2011).

[ii] See Rebekah Metzler, GOP proposals are an ‘assault’ on Maine’s environment, advocates say, Portland Press Herald, Mar. 2, 2011, http://www.pressherald.com/news/proposals-are-an-assault-on-environment-advocates-say_2011-03-02.html.

[iii] According to NRCM, the range of environmental laws targeted this year is “unprecedented.”  See Susan Sharon, Group Decries “Assault” on Maine’s Environmental Laws, Maine Public Broadcasting Network, Mar. 1, 2011, http://www.mpbn.net/Home/tabid/36/ctl/ViewItem/mid/3478/ItemId/15454/Default.aspx.

[iv] The NRCM has compiled a list of the bills (and their sponsors) and provided explanations of their intended impact.  See NRCM, 50 Bills That Could Weaken or Undermine Maine’s Environmental Safeguards (Feb. 28, 2011), available at http://www.clf.org/wp-content/uploads/2011/03/50-Environmental-Rollback-Bills-in-the-125th-Legislature-2-28-11.pdf.

[v] See, e.g., Sharon, supra note 3 (“[Senator] Snowe-Mello says Maine’s distinction of being ranked behind all other states for business climate has convinced her that lawmakers need to consider the big picture when they pass laws.  She says environmental groups are overly concerned about a single issue.”)

[vi] See, e.g., Sean Mahoney, Environmental Challenges under a LePage Administration, Conservation Law Foundation, Nov. 5, 2010, http://www.clf.org/blog/ocean-conservation/environmental-challenges-under-a-lepage-administration/.

[vii] See A.J. Higgins, LePage Drops Opposition to BPA Ban, Maine Public Broadcasting Network (Mar. 25, 2011), http://www.mpbn.net/News/TheTransition/tabid/1319/ctl/ViewItem/mid/4310/ItemId/15759/Default.aspx.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] See Jay Field, Vernal Pools at Center of Maine Environmental Regulation Debate, Maine Public Broadcasting Network, Mar. 23, 2011, http://www.mpbn.net/News/TheTransition/tabid/1319/ctl/ViewItem/mid/4310/ItemId/15721/Default.aspx.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Id.

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