Friday, January 20, 2012
According to Merriam-Webster’s online dictionary, “streamline” is defined as “to make simpler or more efficient.” When the economy gets tough, it’s no wonder that decision-makers look to streamline land use regulatory processes as a way to move large development projects forward to create jobs and stimulate the economy.
However, regulatory processes are complex, based on years of agency interpretation, permit applicant practice, legislative tweaks, and the occasional court made rule. Changing any one part of one regulatory process can have systemic implications that roil other regulations that make up the tapestry of land use entitlements. In their frustration, decision-makers propose wholesale exemptions.
Exemptions have consequences all their own. The regulatory system and the area of administrative law came about to relieve the pressure on courts from dealing with myriad controversies that became more and more complex as our society advanced. The regulatory process creates a rational, procedural based framework within which issues such as impacts from proposed developments, can be evaluated and mitigated based on the best available science. In permitting, agencies review these facts and weigh them against criteria established by a legislative body. The record the agency creates and the decision it makes is the basis for any challenge taken up at the judiciary by parties with standing. Courts happily rely on agency expertise on factual issues. A judge is learned in the law but cannot be expected to know engineering methodology or complex scientific analysis.
What would the world look like without administrative law and the regulatory process? The courts would have no record from the agency to work from. All facts would need to be reestablished on the record before the judge or a jury. There would be no third party agency standing between the persistent permit applicant and the angry plaintiff. The judge would not have the framework of a reasonable process to evaluate the facts; there would be no standards or criteria to apply to the facts. In essence, the judge would have to rely on general principles of land use law. For example, without a permitting process for the coastal zone, a judge in Hawaii might rely on general principles of Hawaii constitutional law and public trust doctrine. The grey area and uncertainly in this scenario should have lawyers salivating as thoughts of billable hours dance through their heads.
Instead of wholesale exemptions to environmental laws, which are not streamlining, let’s actually think about rational, reasonable processes that are agnostic about outcomes and provide decision-makers with the information they need to make sustainable decisions that balance economic, environmental, and socio-cultural issues.