June 18, 2018
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Repeal of DEP conflict of interest rules will end in tears

By Neil Ward and Steve Hinchman, Special to the BDN

After losing his Department of Environmental Protection commissioner to conflict of interest rules, Gov. Paul LePage’ s solution is not to pick a new candidate who is qualified. Instead, he wants to lower the standards.

The Legislature should refuse. High government officials with a private conflict of interest simply have no place in a modern democracy — especially as members of the governor’ s cabinet.

Currently, Maine applies the same ethics standards to its environmental regulators as does the federal government. Anyone who receives more than 10 percent of their annual income from holders or applicants for federal permits to discharge water pollution cannot be responsible for issuing or denying those permits. Maine uses the same language for permits issued under state law. Thus, a Maine DEP commissioner with a conflict is also barred from reviewing state water pollution permits as well as permits under the Natural Resources Protection Act or the Site Law of Development Act.

The governor contends that this commonsense ethical standard — which has been in place for two decades — has created an “emergency.” Since he cannot change federal law, his bill would repeal only the conflict standard as it applies to state law permits.

Under the governors’ plan, a conflicted DEP commissioner could issue a water pollution discharge license under state law, but could not consider the almost identical federal Clean Water Act discharge permit, which Maine administers on behalf of the U.S. Environmental Protection Agency. Instead, the permit applicant would have to file a separate permit to a separate division within DEP that would be signed by a separate decision maker.

How’ s that for red tape?

The governor’ s bill is clearly unworkable. Moreover, lowering Maine’ s current standards to allow substantial conflicts of interest at DEP is a bad idea.

First and most obviously, it’s wrong. We don’ t want polluters overseeing the agency that issues pollution control permits.

Second, low ethical standards in government raises concerns about Maine as a place where businesses will be treated equally and fairly. When competing companies apply for similar permits — be it boatyards or casinos or ski areas — it is critical that the agency official making the decisions be truly independent and have no personal interest in the outcome.

Third, conflicts of interests put agency staff in a no-win position. Does anyone think that the DEP’ s field inspection staff wouldn’t think twice before writing up the boss’ company for a violation? Or that DEP permit writers really want to risk their jobs to raise concerns about potential problems they might uncover when it’s the boss’ company asking for the permit?

This bill would create more problems than it would solve. Two-thirds of all permits issued by the DEP are integrated state and federal permits and would be off limits to a conflicted commissioner. Instead, those duties would be delegated to a DEP employee — a shadow commissioner — who would effectively have more power than the real commissioner.

Its hard to imagine a more bureaucratic and inefficient structure.

Legislative leadership says the bill is necessary to allow certain members of the Board of Environmental Protection to continue to serve. But that is no reason to change the rules as they apply to the commissioner. Moreover, conflicted board members will face the same problem — they will be unable to consider more than half of the issues that come before them.

So what’ s really going on here?

From day one, the governor’ s goal has been to repeal Maine’ s environmental laws to make the state more “business friendly.” His legislative reform agenda, however, was dead on arrival. Now he is pursuing an alternate route — to undo those laws from inside DEP.

Maine’ s environmental laws have strong support from voters. People want less bureaucracy and more streamlined enforcement of those laws, not repeal by executive fiat.

The Legislature should block this move. No good will come from a DEP commissioner with a conflict of interest.

Neil Ward is executive director of the Androscoggin Alliance. Steve Hinchman is an environmental attorney in Bath and counsel for the alliance.

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