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David Watson 🥑
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Chris Elmendorf
@CSElmendorf
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@JesseJenkins
celebrates the law for (1) eliminating veto points, (2) facilitating robust public participation in permitting, (3) speeding up permitting. I'm convinced of (1); but I think upshot for (2) and (3) is less clear. /2
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Chris Elmendorf
@CSElmendorf
The law's big permitting reforms are as follows: - 1. Replace litany of local permits (and, for large projects, state permits) with a single comprehensive permit. All locally authorized "permitters" still get to weigh in, but only w/ recommendations. /3
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Chris Elmendorf
@CSElmendorf
- 2. Replace open-ended enviro review under MEPA (a mini-NEPA) with enviro & equity mitigation pursuant to *standards* issued by state agency. Standards will vary by project type & location. Effectively, this is like statewide zoning. /4
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Chris Elmendorf
@CSElmendorf
(To be clear, there is still a requirement for analysis of impacts, including cumulative impacts, but the law gives a state agency control over what must be analyzed and how.) /5
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Chris Elmendorf
@CSElmendorf
- 3. Set time limits on project review, *backed by a constructive-approval proviso.* This proviso is critical. Time limits w/o consequences for blowing past them are meaningless. Time limits backed by automatic approval could be powerful. /6
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Chris Elmendorf
@CSElmendorf
- 4. Defang NIMBYism by either vesting original permitting authority in a state agency (large projects), or by giving a state agency authority to review local permitting decisions de novo (small projects). Also, project applicants may petition state agency to take over... /8
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Chris Elmendorf
@CSElmendorf
permitting of any "small project" w/ a showing of "good cause." This is a flexible -- and I think promising solution -- to problem of local foot-dragging. E.g., if local gov't refuses to find an application "complete" (the trigger for start of 12-month shot clock)... /9
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Chris Elmendorf
@CSElmendorf
I see three areas of potential concern, however. First, the law provides grant funding for community groups to participate as intervenors in permitting process. There are guardrails: - no grants for litigation - 10% overhead - no judicial review of grant denials /11
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Chris Elmendorf
@CSElmendorf
Jenkins sees this as necessary for legitimacy and/or good results--and as very different from "paying people to sue the gov't." I'm not so sure, given: - money is fungible: paying for NGO lawyers at permitting stage will allow NGOs to reserve other funds for litigation /12
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Chris Elmendorf
@CSElmendorf
- credibility of NGOs' litigation threat is increasing in their lawyered-up participation in permitting process (b/c of exhaustion requirements) /13
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Chris Elmendorf
@CSElmendorf
The law authorizes a state agency to establish criteria for which groups get participation grants, but the criteria don't say anything about representation / membership, or relevant knowledge. /15
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Chris Elmendorf
@CSElmendorf
Second area of concern: this law could easily engender or reinforce a kind of progressive crony capitalism. Permit applicants are required to exhaustively document their DEI initiatives, intended use of union labor, etc. /16
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Chris Elmendorf
@CSElmendorf
This is a clear invitation for state and local agencies to decide which projects to approve based on whether the applicant is in good standing with "the Democratic Party family," rather than on the basis of the project's economic & environmental value. /17
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Chris Elmendorf
@CSElmendorf
Third concern: the law doesn't address incentives for litigation. It has typical boilerplate language about standing and the scope of review, but... /18
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Chris Elmendorf
@CSElmendorf
it says nothing about: - fee shifting (e.g., no attorneys fees for plaintiffs who challenge enviro-winner projects, like AB 1633 in California, x.com/CSElmendorf/st); - bonding requirements (requiring losing plaintiffs to compensate applicant for delay); /19
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Chris Elmendorf
@CSElmendorf
Replying to @CSElmendorf
AB 1633 also defangs the NIMBY litigation threat, because the bill includes a legislative finding that attorneys fees should "rarely, if ever" be issued to plaintiffs who challenge dense infill housing on good sites, unless city approved project in bad faith. /9
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Chris Elmendorf
@CSElmendorf
- temporal or other limits on injunctions; - and, most critically, judicial review of "constructively approved" projects. Again, if agency misses the permitting deadline, the project is constructively approved w/ standard conditions of approval. /20
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Chris Elmendorf
@CSElmendorf
But if a NIMBY group then asks court to set aside project b/c the agency failed (for example) to do the required "cumulative impacts" analysis before approving the project, what happens? The law is silent. /21
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Chris Elmendorf
@CSElmendorf
P would argue that procedures weren't followed (inadequate analysis); D would argue that they were, on theory that constructive approval is a procedural trump. /22
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Robert Brown
@RobertB04028123
Seems like this Mass. bill will apply in few situations. Mostly it will be an excuse the turn off (& not repair) existing gas lines to citizens. These "geothermal systems" are very expensive & won't be built (Stanford U. has one, very $$$.) So go ahead, relax permitting.
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