June 24, 2018
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Regulating in the Shadows

It’s the perfect example of the kind of regulatory reform Maine needs: a Department of Environmental Protection ruling that blocked a fisherman from storing lobster traps on his pier because the shadow they cast hindered seaweed growth. The ruling was lifted last month, with DEP directed to no longer enforce such restrictions.

It’s the perfect example because it defines the sort of low-hanging fruit which the Republican legislative majority and pro-business Republican governor ought to focus on changing. Here’s the evidence: State agencies couldn’t agree on the issue, indicating a lack of consensus; the perceived harm was not tied to public health and the environmental impact on habitat was tenuous; and it made it significantly more difficult for a small-business owner to operate.

Had Gov. Paul LePage used this as his signature example, rather than opposing the bisphenol A ban, which has a tie to children’s health, he might have won more support widespread support for his regulatory reforms.

The “shadow on the seaweed” case also is ripe for trumpeting from the roof of the State House because it reveals the power state agencies have beyond that set by the Legislature. There was no clear rule about shadows cast by lobster gear, so DEP’s ruling was more of an interpretation than an enforcement. The Department of Marine Resources didn’t agree with the DEP ruling.

The governor and GOP legislators are correct in pushing for a change in the culture of state regulatory agencies. Laws and regulations must be enforced, but bureaucrats can work to point business owners toward solutions, rather than merely issue flat denials.

Along these lines, there is ample work to be done in streamlining the way state offices interact with businesses. Instead of having to file certain reports monthly, requirements might be eased to require filing quarterly. Instead of having to secure permits from several offices, one might be charged with handling the approvals.

Former Gov. Angus King observed that the Rockland Breakwater could not be built in the modern regulatory era. Yet the breakwater has become a habitat for lobster and a nursery for some fish species. Deer habitat also relies on man’s hand on the land — clearings for pasture and crops and logging, for example.

The role of environmental advocates is to draw a sharp line at the administration’s impetus to weaken rules and regulations that clearly protect human health, safety and welfare.

But the advocates should agree that while lobster traps do indeed cast shadows, worrying about the impact of those shadows is way down the list of the state’s concerns.

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