Act 250 Commission Looks To Add Climate Change, 'Ecosystem Protection' To Law

Act 250, Vermont’s major land use and development review law, is approaching the mid-century mark. And a commission that has spent the last 18 months looking at its future says the law need to be updated to reflect more current environmental threats, such as climate change.

Here's the origin story of Act 250: Deane Davis, a Republican governor with a business background, saw unchecked resort development that was causing serious environmental impacts. According to a history published on the act’s 25th anniversary, Davis toured a southern Vermont project with hastily constructed second homes and witnessed “open sewers running into the ditches, which startled me.”

So the businessman-turned-politician made a plea to the developers.

“Deane Davis went to particular landowners and developers and asked them to stop their process while the state could kind of get their ducks in a row to address the impacts of it,” said Middlebury Rep. Amy Sheldon, who chairs the commission on Act 250’s future. “And those folks set their personal interests aside and did that.”

Sheldon said she hopes the spirit of crisis and compromise that led to the original law will prevail now when the law is re-examined by the Legislature.  

“The thing that happens so fast with Act 250 is people get into their little detailed area of wanting change,” Sheldon said. “And what I’ve really tried to focus on in this process and will hope to do in the legislative session is keep a high level of trying to do what’s best for the future of the state of Vermont in those big areas of climate change and ecosystem protection.”

Whether that sense of compromise continues this year depends, of course, on how lawmakers and lobbyists react to proposed changes.

Act 250 says major developments must be reviewed under 10 environmental criteria, including the project’s impact on air quality, water, traffic and municipal services. The commission recommends climate change and mitigation be added to the criterion dealing with air quality, and the panel also says the law should be amended to address forest fragmentation and ecologically fragile areas. 

But projects targeted for downtowns or already developed areas would get a lighter touch, or even a pass, under Act 250.

Developer Ernie Pomerleau served as an adviser to the Act 250 commission. He supports a commission recommendation that has to do with which side has the burden to show that a permit would be bad for the environment.

“What seems to have at least an open dialogue right now is to change the burden of proof so that the developer, the regulated community, after spending years to get a permit ... from the state, from the town, from the federal, Act 250, etc., etc. — if they’re appealed, it’s imperative that the people appealing prove that that we’re wrong, not that we’re right,” Pomerleau said.

But Pomerleau does not like a suggestion in the committee’s draft report that would send Act 250 appeals to a panel appointed by the governor, rather than environmental court where they are heard now.

“We feel very strongly that that not be changed, that we retain the legal venue that is in process now,” he said.

Many environmentalists disagree. Brian Shupe, executive director of the Vermont Natural Resources Council, said appeals should be heard by a panel that is more citizen-based.

“The appeals process has been a subject of criticism from a lot of different folks, both applicants as well as other parties,” Shupe said. “And the commission decided this was a good approach for addressing some of the concerns and hopefully making it more efficient and less expensive and more accessible to the general public and applicants.” 

The Legislature convenes on Wednesday and a number of committees are likely to take a look at changes to Act 250.