Leaders of environmental and democracy groups say that Gov. Phil Scott overstepped his authority when the Republican issued an order aimed at speeding up housing development by rolling back regulations last month.
In a letter sent to top administration officials on Wednesday, the organizations claim the executive order — issued while lawmakers were not in session — “directly undermines the authority of the legislature and the separation of powers” established in the state Constitution.
The order made a suite of changes to housing permitting in Vermont that, given the state’s deep housing deficit, Scott and his allies argued could not wait until lawmakers reconvene in January. It alters rules for building in wetlands, allows builders to comply with older and less stringent energy efficiency codes, and changes timelines for decision making under Act 250, Vermont’s development review law, among other measures.
Lauren Hierl, executive director of the Vermont Natural Resources Council — one of the groups that issued Wednesday’s letter — said policy decisions on these issues should be made via open discussion and debate.
“Instead, we’re having to have this conversation about an illegal overreach of executive power, which is really frustrating and concerning,” she said.
At a regularly-scheduled Wednesday press conference, Scott defended the administration’s decision to issue the order, but noted he had not yet been made aware of the groups’ opposition.
“We believe it’s in our authority,” Scott said. “We believe that housing has been stated as an emergency in Vermont.”
The letter asks state agency leaders to determine whether they have authority to carry out the changes in the executive order, while strongly suggesting that they lack it. If the agencies cannot prove that they have the authority, they should halt implementation of the order’s changes, the letter says.
At least one developer has signaled that the executive order might open up new options for their project. In Manchester, builders of a 43-unit project indicated last month that the governor’s amendment to wetland buffer areas might offer flexibility for the project’s design, according to reporting from the Manchester Journal. The development has drawn scrutiny for being sited in a flood-prone area.
The pro-housing lobbying group Let’s Build Homes praised Scott’s order last month. The group’s executive chair, Miro Weinberger, said in a text message on Wednesday that the group would not comment on the procedural and legal objections to the order.
“We continue to be appreciative that the Governor is attempting to use the independent authorities he does have to remove barriers to new homes,” Weinberger added.
Asked if the Vermont Natural Resources Council is considering pursuing legal action, Jon Groveman, the organization’s policy and water program director, said the council is giving the agencies a chance to respond and clear up the order’s implications “without having to go to court.” But the council will “consider all our options going forward” after the state responds, he added.
The letter is directed to Julie Moore, secretary of the Vermont Agency of Natural Resources, Kerrick Johnson, commissioner of the Department of Public Service, and Janet Hurley, chair of the Land Use Review Board. In addition to the Vermont Natural Resources Council, it is signed by representatives from the Conservation Law Foundation, the Vermont chapter of the Sierra Club, Vermont Conservation Voters, Vermont Public Interest Research Group and the ACLU of Vermont.
