June 19, 2018
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Avoiding Conflicts

Darryl Brown

By contorting the state’s conflict of interest standards for its environmental commissioner, lawmakers are making a perceived bad situation worse.

This came about because Gov. Paul LePage appointed a land developer to head the Department of Environmental Protection despite concerns that this was a conflict under state and federal law.

Darryl Brown stepped down as DEP commissioner late last month after the state attorney general said unless Mr. Brown produced documents showing that no such conflict existed, he could no longer function in that post.

“In the absence of new information, it appears you are unqualified to serve as commissioner of the Department of Environmental Protection under Maine law,” Attorney General William Schneider wrote in an April 27 letter to Mr. Brown. The U.S. Environmental Protection Agency stopped investigating whether Mr. Brown was in violation of federal law when he stepped down.

In announcing Mr. Brown’s resignation, Gov. LePage said he would seek to get the law changed because it “is so inflexible that it can be read to prevent good people from serving.” He also criticized the Maine law for going further than federal standards.

According to Maine Today Media, the administration considered changing the law as soon as Mr. Brown’s potential conflict was raised in February. Republican legislative leaders rejected that option at the time, but are now sponsoring the law change through LD 1575.

The bill, as amended by the Environment and Natural Resources Committee, would create a complex process for a DEP commissioner who does have a conflict of interest to recuse him or herself, which is allowed under federal law.

Under federal law, anyone who receives more than 10 percent of his or her annual income over the prior two years from holders or applicants for federal permits to discharge water pollution cannot serve in a government position that is responsible for issuing or denying those permits. A commissioner with a conflict cannot issue state water pollution permits or permits under other environmental statutes, including the Natural Resources Protection Act or the Site Law of Development Act, which make up much of the department’s work. The commissioner could designate someone else to handle this work. The revised LD 1575 sets up a process to do this.

In effect, it would create a shadow DEP, headed by someone other than the commissioner, to handle about two-thirds of the department’s work. This isn’t practical.

Some Democrats, including House Minority Leader Emily Cain and Senate Minority Leader Barry Hobbins, have supported the state law change because the current standard also bars municipal employees, college professors, grocery store workers — anyone who works for an entity that needs a discharge permit —  from serving on the Board of Environmental Protection. The amended bill would allow such people to recuse themselves from deliberations related to discharge permits. Again, however, they would be sitting out much of the board’s work.

A better solution would be to appoint people to these positions who don’t have conflicts.

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