The Vermont Senate on Feb. 4 voted to reject an executive order issued by Gov. Phil Scott to restructure the state’s process for reviewing Act 250 land use permits.
The order, signed by the governor last month, would give more power to the state’s Natural Resources Board, which reviews development projects under the state’s half-century-old land use law. It would reduce the board from five to three members and also remove permit review and decision-making authority from the state’s nine Act 250 district commissions.
Scott’s office said last month that the newly empowered Natural Resources Board would oversee all major land use projects — an approach it said “both ensures a consistent and predictable permit review process and remains responsive to community concerns.”
But the Senate last Thursday voted to kill the executive order, as the Senate Natural Resources and Energy Committee had recommended.
Sen. Chris Bray, D-Addison, who chairs the committee, said his “first and foremost” concern with the executive order is that the Natural Resources Board lacks the track record to take over the district commissions’ duties. He said that the board has never reviewed permit applications, while district commissions have reviewed thousands of permits since the late 1970s.
“The district commissions appear to be timely and, by virtue of their partnership with the (Natural Resources Board), designed to deliver the very consistency named as a goal in the executive order,” Bray said, speaking on the virtual Senate floor.
While Scott’s order would remove authority from district commissions, two regional district commissioners would join the Natural Resources Board to review major Act 250 project applications from the areas where they have jurisdiction.
Bray also told the Senate that the Natural Resources Board is currently operating with a deficit of about $650,000, and the executive order would increase its annual operating budget by $500,000.
Yet, Bray said, the executive order offers no “permanent financial solution” to covering new costs for the board — only one-time dollars to pay off the deficit and get it into operation.
He also said the executive order doesn’t spell out a process for appealing the board’s decisions.
Senators emphasized their willingness to work with the governor on Act 250 and asked the administration to bring forward a draft bill that be developed through the traditional legislative process.
The majority of legislators who voted to block the executive order last week were Democrats.
Two Democratic senators, Thomas Chittenden of South Burlington  and Dick Mazza of Grand Isle, joined six Republicans in opposing the resolution. Sen. Richard Westman, R-Lamoille, was the only member of his party to support it.
While current law says an executive order can be rejected by a vote of either the House or the Senate within 90 days of its issuance, the Scott administration has argued that it takes both chambers to reject such directives. The House does not plan to take up the Act 250 measure, according to Conor Kennedy, chief of staff to House Speaker Jill Krowinski, D-Burlington.
The House, on the other hand, on Friday rejected another executive order issued last month by the governor to establish a new agency to hold all of Vermont’s law enforcement divisions. The lower chamber on Feb. 5 voted, 108-40, to disapprove executive order 01-21.
Since he took office in 2017, Scott has tried several times to use executive orders to restructure state government.
In 2017, the governor used an executive order to establish the Agency of Digital Services. That year, he also tried to merge the Department of Labor and the Agency of Commerce and Community Development, but legislators shot down the proposal.
The Legislature also rejected an executive order that would have merged the Vermont Lottery Commission and the Department of Liquor Control. But in 2018, House and Senate members  approved the merger via legislation.
The Scott administration says it’s premature to discuss whether it will take legal action over its Act 250 order.
Jason Maulucci, Scott’s press secretary, said there were “many paths the Legislature could still pursue before the 90 days are up, such as legislation which accomplishes the same goals, as they did with the Department of Liquor and Lottery, or a vote to disapprove taken up by the House, as we have suggested is required.”
“Reorganizing the Natural Resource Board and modernizing Act 250 are imperative to better manage the issues we face today, including environmental stewardship and addressing climate change, economic growth and regional economic equity, and more,” Maulucci said.