Inside Track
To many Americans, the state of Vermont is synonymous with environmental stewardship.
Long before Vermont became a household word with the adoption of civil unions for gay couples in 2000, and the exciting presidential campaign of Howard Dean three years later, Vermont was recognized nationally as a leader on the environmental protection front.
After all, this is the state that banned ugly highway billboards and started an annual Green-Up Day decades ago. The state that took the lead in protecting the landscape from the "Anywhere USA" look with the passage of Act 250 in 1970.
Vermont is the state that led the charge in the 1980s against the acid-rain pollution produced by coal-burning power plants in the Midwest.
But in the Vermont of the 21st century, many things have changed. And one of them is the power of environmentalism on our state's political pecking order. Sure, there's plenty of lip service, but the dark little secret is, Vermont isn't as green as it used to be.
The change actually began, we'd argue, in the early 1990s. It was the dawning of the Age of Dean.
As a presidential candidate and now as the new chairman of the Democratic National Committee, Howard Dean may well sound like a born-again liberal, but the Howard Dean who governed Vermont through the 1990s was a pro-business moderate who viewed environmentalists as extremists.
Gov. Dean showed his true colors early. In an unprecedented move, Ho-Ho publicly criticized the Environmental Board's 1993 decision on C&S Wholesalers' Brattleboro expansion. The E-Board functioned as a judicial panel. No governor had ever butted in after the fact and publicly criticized an E-Board decision.
Chaired by Elizabeth Courtney, an appointee of Republican Gov. Richard Snelling, the board had put conditions on the company's Act 250 permit. Air pollution was the issue. The company didn't like it.
Dean's outburst emboldened Republi-cans in the state senate. They subsequently punished Courtney by denying her reappointment the following winter. Environ-mentalists have been on the defensive ever since.
These days Elizabeth Courtney is executive director of the Vermont Natural Resources Council, a leading environmental group active since the 1960s.
"I wouldn't give the state of Vermont high marks in environmental protection lately," Courtney told Seven Days this week. "I think we've been resting on our laurels for a decade."
Queen Elizabeth's got a point.
But last year, the clean-air-and-water crowd experienced something of a comeback -- not through legislation but through good legal work.
The first victory was in federal court in May. Environmental groups successfully argued that the Douglas administration was violating the Clean Air Act in its hastiness to construct the controversial Circumfer-ential Highway.
The second win came in October when the Water Resources Board unanimously ruled against dumping more stormwater pollution into Chittenden County's already "impaired" streams. The board said shopping-center owners would henceforth need federal stormwater permits.
Sounds reasonable, eh?
To Chris Kilian, the veteran environmental lawyer representing the Conservation Law Foundation, the WRB decision made perfect sense.
"The board basically said that existing polluters in these five watersheds are contributing to water quality standards violations and therefore have to get regulated under the federal Clean Water Act. That means they would actually have to clean up the pollution they're causing."
Polluters would have to shell out some dough to clean up their act. Nothing too radical there, eh?
"That's the way the laws are supposed to work," noted Kilian. "That's why we have environmental laws. If somebody's causing a problem they're required to clean it up. That's all the board said."
Unfortunately, a lot of folks don't see it that way. The Greater Burlington Industrial Corporation, the Lake Champlain Chamber of Commerce, shopping center magnate Ernie Pomerleau and others went ballistic. The WRB decision, they said, would both kill development and prohibit clean-up efforts. And these business types have friends in high places.
The Agency of Natural Resources, the attorney general and the governor are all firmly in their corner. Instead of supporting the 5-0 ruling of the WRB (a board that had two Douglas appointees), the state is fighting the ruling tooth and nail. And last week, Supreme Court Justice Marilyn Skoglund issued a "stay" -- halting the implementation of the board's decision until the full Supreme Court hears the case later this year.
In one published report over the weekend, Vermont's official environmental protector, Tom Torti, said he was "heartened" by Skoglund's ruling.
"What this does," said Torti, secretary of the Agency of Natural Resources since January, "is allow us to enact provisions under Act 140 and we don't have to develop a parallel federal procedure for which rules and regulations do not exist."
Act 140 is the Douglas administration's stormwater legislation that passed last year. Mr. Kilian was flabbergasted by Torti's statement.
Kilian noted that Act 140 clearly says the state's environmental secretary "shall implement two stormwater permitting programs." One is to be based on the federal Clean Water Act and the second, "under the Byzantine state law they set up," does nothing to clean up already polluted streams.
"Act 140 does not require existing polluters to change their behavior in any way," said Kilian, "unless and until they expand their operations or there is a redevelopment of an existing site. That's the only way these guys are roped in."
Courtney agreed, noting Act 140 did not address the matter of cleaning up existing stormwater pollution that is pouring into already polluted streams.
"That's why we never took the option off the table," said Courtney. "That if [existing pollution] wasn't addressed, we would seek guidance from the WRB, which we did."
However, the guidance provided by the WRB last October, requiring tougher federal standards for already impaired streams, is guidance the Douglas administration refuses to accept.
"I wouldn't necessarily agree with Mr. Kilian," said Sec. Torti. "He has a unique knack for distilling things in a way that makes his case look good. We're very, very happy that the supreme court has decided to take this case."
Sec. Torti said he's happy the case would move forward in a "more timely" fashion, since Justice Skoglund had issued a second order denying a request for a "remand" -- i.e., sending the whole case back to the WRB for a new evidentiary hearing.
However, Tom Terrific neglected to mention that his side had asked for a remand. CLF and the VNRC had opposed it.
When we pointed that out to the secretary, he readily acknowledged it as "one strategy we had." Torti described it as "one process that had been suggested to us by our attorneys, and we decided to take advantage of all legal avenues available to us."
Whatever you say.
Kilian said he, too, is eager to have the Vermont Supreme Court decide the appeal of the WRB's landmark unanimous decision.
"They won a stay, which in the end is probably meaningless anyway," said Kilian, "because it's not like the [Agency of Natural Resources] has been running out to seek to implement this thing. Until there's a final decision of the court, I doubt that ANR really would have paid much attention to the Board's order anyway."
He's right.
In fact, our rookie environmental secretary rejected the notion that Act 140 requires him to set up two stormwater permitting programs.
So we read the secretary the text of Act 140 over the phone on Monday. After enumerating the law's intent to clean up stormwater pollution, Act 140 states: "In furtherance of these purposes, the secretary shall implement two stormwater permitting programs. The first program is based on the requirements of the federal National Pollutant Discharge Elimination System (NPDES) permit program ... The second program is a state permit program based on the requirements of this section for the discharge of 'regulated stormwater runoff.'"
Aren't you required to run two programs, we asked again?
"No," Torti replied. "We have one system, which is a state permitting system. We do not have to develop a federal NPDES system and a state system."
Confused?
You bet.
Sec. Torti then pointed out that Attorney General Bill Sorrell made the "telling" decision to represent ANR in appealing the WRB's stormwater decision.
He's right about that. In fact, Sorrell, a Democrat who was once Torti's boss, has eagerly entered the fray on the side of ANR.
In Gov. Douglas' ongoing battle with the environmental community, Sorrell's support is something our Guv enjoys mentioning. It's also something that clearly rankles Kilian.
"One of the unfortunate aspects of the way this is playing out," said Kilian, "is that Bill Sorrell decided to take sides on this thing and picked the wrong side. Instead of representing the people of this state and their interests in clean water, he decided to take the side of ANR. ANR has done everything in its power to avoid asking polluters to clean up their act in these waters for 25 years."
Reached in the nation's capital Tuesday, Gen. Sorrell bristled at Kilian's charge. He ran down a list of federal lawsuits he's joined against the Bush administration, from global warming to acid rain.
"I don't think anybody would say," said Sorrell, "that I've been weak in terms of protecting the environment. I hope that's not what Chris Kilian is saying."
Don't get your hopes too high, Gen. Billy.
"The people of Vermont don't have anyone else to turn to, to clean up these waters," said CLF's Kilian. "That's the Agency of Natural Resources' job, and unfortunately Attorney Gen. Sorrell and ANR have banded together to stand up for polluters instead of standing up for Clean Water."
"CLF and the Agency of Natural Resources," explained Sec. Torti, "have a very different view of the world. They're entitled to theirs, as we are to ours, and ultimately the court will decide who's correct in this matter."
Right now, Vermont's environmental reputation is securely in the hands of our five black robes.
The Torti File -- Tom Torti, 50, has been on the job as Vermont's top protector of the environment since January, but he's a familiar face in state government.
Indeed, some would question his credentials to head the state's environmental agency. Tom's got a Master's in education. Isn't the job supposed to go to an environmentalist type, or at least to someone who's studied environmental science?
Not in the current scheme of things. Gov. Douglas appears to go for "management skills" rather than experience in any particular field. We've also seen it in his picks to head Corrections and the Transportation Agency. And his first choice to run the Human Services Agency was a banker.
A St. Mike's grad, Torti's been on the state payroll for 25 years. He started in 1979 working under a state contract at Washington County Mental Health Services. That work, he told us, led years later to the construction of Woodside, the state's juvenile jail. Tom went on to work in human services for 11 years, particularly in risk-assessment work in the child-abuse field.
Great training for an environmental secretary, eh?
Tom then served a tour as executive director of the State's Attorneys and Sheriffs' Depart-ments.
Hey, prosecutors and sheriffs have to deal with the environment on a daily basis, right?
Gov. Dean then tapped Torti to be state personnel commissioner. Next, he moved up to deputy administration secretary under Bill Sorrell. After that, in 1997, this talented government bureaucrat became commissioner of Buildings and General Services.
Torti's current post as environmental secretary, he said, is "one of the best jobs I've had so far." The issues, he said, are "interesting" and "fun," and at the end of the day, "you feel like you're dealing with very important stuff."
Asked bluntly about his lack of environmental qualifications, Torti replied by describing himself as "a general services commissioner who had been nationally recognized for pioneering work bringing green buildings, environmentally preferable purchasing, and a downsized fleet to state government."
Torti described ANR as a "large agency with many management challenges." There are currently 611 permanent employees, with another 500 part-time workers during the summer, he said.
Asked to name the top environmental issue facing Vermont, Sec. Torti replied, "Saying one outweighs the other really does environmentalism a disservice. I think you have to look at them holistically and organically."
Unfortunately, Tom Terrific also thinks tougher federal water quality standards on stormwater runoff should in no way, shape or form be applied to Chittenden County's polluted waterways.
Interesting that our new environmental commissioner has enough free time on his hands to continue his duties as a selectman in the Town of Essex, home of IBM. Tom Terrific is serving his second term.
Selectman Torti said he's very cognizant of potential "conflicts of interest" and "will take appropriate action -- even leaving the room" when necessary at selectboard meetings. And even though he describes his cabinet post in the Douglas administration as "more than a full-time job," Torti said he sees "no reason why I can't fulfill the responsibilities the voters in Essex gave me."
Torti said the position of environmental secretary requires someone "who's efficient and effective at managing their time so that they can juggle many balls."
The secretary's comments on the current stormwater case indicate Torti's juggling ability may well be the stuff of legends!
Media Notes -- Bennington Banner Managing Editor Sabina Haskell is leaving this month to accept a position at the Rutland Herald. Sabina will be the Herald's new city editor.
What the Herald really needs is a good online editor -- the paper's website is one of the most confusing around.
And this just in: Rep. Bernie Sanders is scheduled to appear on "The Howard Stern Show" Friday morning at 7:30. Birds of a feather?
They are when it comes to the FCC setting "decency" standards for satellite broadcasting.
Stern is heard locally on WIZN-FM.