Friday, January 20, 2012

Our Love Affair with Streamlining

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.

You must know what strings to pull, lest it unravels.
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.

1 comment:

PeterYoung said...

I wonder how the Public Land Development Corporation fits into this discussion. The enabling legislation suggests, “The purpose of this chapter is to create a vehicle and process to make optimal use of public land for the economic, environmental and social benefit of the people of Hawaii.”

Yet, the law provides a significant list of exemptions, “Exemption from requirements. Notwithstanding section 171-42 and except as otherwise noted in this chapter, projects, pursuant to this chapter shall be exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to special improvement district assessments or requirements; land use, zoning, and construction standards for subdivisions, development, and improvement of land; and the construction, improvement, and sale of homes thereon; provided that the public land planning activities of the corporation shall be coordinated with the county planning departments and the county land use plans, policies, and ordinances.”

Not only does this provide a significant cost and regulatory advantage for the state corporation over private development, by exempting these requirements, it suggests they may not be necessary to begin with.

It will be interesting to see how the law is implemented and if it shows existing regulations are too onerous (especially since the state exempted itself from the requirements.)