Commentary: Putting 'Climate Change' into Act 250

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Act 250, Vermont's landmark land use and environmental control act of 1970, is coming up on its 50th anniversary, and the people who promoted it then have a lot more of the same in store for us.

The organization that went all out to pass Act 250 is the Vermont Natural Resources Council (VNRC). Its present leadership is urging the passage of a bill to create a "Commission on Act 250: The Next 50 Years" (H.424). It passed the House on March 31 without any recorded vote.

Act 250 was the legislative response to a surge of land development in the late 1960s that threatened to overwhelm small Vermont towns. It had three parts: permit criteria for "developments;" a "capability and development plan," to show where environmental conditions were suitable for various kinds of development; and a "state land use plan," which would specify the correct use of every acre of land in the state. To the shock and dismay of the VNRC, outgoing Gov. Davis described this as a "statewide zoning plan".

The vaguely drafted permit criteria were enacted. The "C&D plan" was never even attempted. Instead, the 1973 Legislature simply labelled a long list of findings and permit criteria enhancements as "the C&D plan". (This little bit of dishonesty is repeated in H.424).

After tumultuous public hearings around the state, the Land Use Plan came crashing down in 1974. A weakened version failed in 1975. An empty shell of a plan failed in 1976. In 1977 its chief Senate promoter, Sen. Arthur Gibb, introduced legislation to repeal the requirement that there even be such a plan. (It was quietly passed in 1984.)

During this battle, VNRC counsel and then chairman Jonathan Brownell, a Yale-educated New York City lawyer removed to Calais, was the chief draftsman and salesman. But as early as 1974 Brownell explained in a law review article that Act 250 was not at all going as he had planned. Just before removing to England in 1995, he told a friendly interviewer that "the obsession with winning and losing has polluted Vermont's community and politics, and that some new process is needed for resolution of environmental and growth controversies." What new process? "I have no idea," Brownell replied.

Now, with the 50th anniversary of Act 250 approaching, VNRC has ambitious plans to push the state's control over land use to new heights.

The proposed eleven-member Commission will include four legislators chosen by the liberal majority, plus this extraordinarily arrogant requirement: "A representative of a Vermont-based, statewide environmental organization that has a focus on land use and significant experience in the Act 250 process." The VNRC simply wrote itself onto this Commission.

The Commission is charged with producing draft legislation to carry out VNRC's agenda, such as "a healthy ecosystem protected from fragmentation," state-designated development centers surrounded by no-growth zones, jurisdiction over ever-smaller developments, and more opportunities for lawsuits to stop permits.

But the most notable addition is a mandate for the Commission to "ensure that the [permit] criteria address the issue of climate change, including greenhouse gas emissions from projects subject to the Act."

What would this mean? One needs only to look at California's "Global Warming Solutions Act of 2006" (AB 32). In 2008 acclaimed climate change warrior Jerry Brown, then attorney general and now governor, seized on AB 32 to shut down a proposed bottled water plant in remote and economically hard-pressed McCloud, Calif. Brown claimed that the local government and the water company had failed to propose some way to stop greenhouse gas emissions from the manufacturing process, the electricity to run the factory and pumps, and the motor fuel burned to move trucks in and out. The company caved and fled. Tough luck, rural people.

To VNRC and its fellow carbon tax advocates, VPIRG and the Conservation Law Foundation, every emission of carbon dioxide must be made to face regulation, taxation, and prohibition, to strike a blow against the menace of climate change.

Nowhere in the proposed legislation is there even the slightest hint of a key issue in any form of land use regulation: property. The Vermont Constitution says that "whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money."

For almost 50 years the VNRC has held that the state can regulate or prohibit any undesirable (to them) use of property without committing a "taking" requiring the payment of money. In fact, it sponsored a major conference in the 1970s on how the state can — or ought to be able to — do just that. We haven't reached that point quite yet, but the day can't come soon enough for the VNRC.

Given the composition of this Legislature, the Act 250 commission bill will probably be enacted. This deal is thoroughly rigged, and those who believe in our Constitution's protection of their right to own and make peaceful use of their own property should prepare themselves for another battle. They defeated the state land use plan in 1976, but times have changed.

John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org). He was a member of the 1970 House, and voted in favor of Act 250. The opinions expressed by columnists do not necessarily reflect the views of the Brattleboro Reformer.

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