Based on the critique of Maine's DEP by attorney David Lossee (8pg pdf), it seems there are some concerning practices happening at the agency that enable corruption or questionable permitting decisions. Specifically, Lossee highlights "permit deferral" where applicants are allowed to get permits without fully meeting all requirements, and "issue avoidance" where major issues are left out of the public permitting process.
The corruption equilibrium models described in the other PDF provide some insights into how this type of corruption could arise and persist, as well as potential solutions. A few key takeaways:
- Corruption often happens through feedback loops and can reach stable high or low equilibrium states. Once in a high corruption equilibrium, it is hard to change without a large exogenous shock. This seems consistent with Lossee's depiction of long-standing problematic practices at DEP.
- The political leader often sets the tone - if they are corrupt, it spreads through the bureaucracy. Cleaning up the bureaucracy may have limited impact if the top leadership is corrupt. This suggests reform may need to start from the top at DEP.
- Reducing direct benefits to leaders from corruption and increasing accountability/costs for presiding over a corrupt bureaucracy can help reduce corruption incentives. This points to potential legislative or public pressure solutions focused on DEP leadership.
- Giving the public an independent right to legally challenge permits, as in Connecticut, could provide oversight and balance DEP's permitting power, as Lossee suggests.
Overall, the insights from corruption models reinforce the need for systemic reforms at DEP that involve leadership changes, transparency, public accountability measures, and independent citizen oversight. A piecemeal approach focused just on bureaucratic processes is unlikely to be sufficient to uproot corruption if the top leadership's incentives remain unchanged. A coordinated anti-corruption strategy is needed
QUESTION
A second speaker at the 2022 Upstream Watch event was atty Charley Bering, also retained by NGO Upstream Watch. Bering deepens the detail of Maine BEP's failings structural and political 9pg pdf. Combine and view through the corruption equilibrium predictive modelling - and other analyses as appropriate.- BEP is not properly applying technology-based effluent standards required by the Clean Water Act. They did not analyze or require best available technology for nitrogen removal at Nordic's proposed facility.
- BEP set a water quality-based nitrogen discharge limit without evidence that Nordic could meet it. This violates the intent of the CWA to prevent pollution and degradation.
- BEP is not responding to significant public comments as required, such as on available zero-discharge aquaculture technologies. This limits public participation and rigorous review.
- The Nordic permit could set a bad precedent for multiple upcoming aquaculture permit decisions if not properly re-evaluated.
Looking at this through the lens of corruption models, it suggests corruption mechanisms may be at play:
- Leadership at the top of DEP/BEP sets the tone - if they are lax on pollution standards, it spreads downward. Reforming lower levels may have limited impact.
- Economic incentives, lobbying, or revolving door capture could sway DEP/BEP leadership against strict pollution control. Their incentives may not align with the public interest.
- Lack of transparency and public accountability enables these practices to persist over time. BEP can ignore comments without consequence.
Potential reforms echo Lossee's suggestions:
- Changes in leadership and governance of DEP/BEP to increase commitment to statutory mandates and public interest
- Increased public oversight powers, like legal standing to challenge permits that violate CWA standards
- Transparency measures like required response to comments and compliance schedules
A multifaceted anti-corruption approach focused on leaders' incentives and accountability is needed to shift Maine's equilibrium away from regulatory capture and toward its stated environmental goals. Technical fixes without addressing the oversight ecosystem and incentives will likely fall short.
QUESTION
Attached is "Before and After the Clean Water Act" 15 pg pdf another more formal review of the history of Maine environmental protection For your reference, in July 1972, Maine BEP superceded the Maine Environment Improvement Commission (aka MEIC or just EIC) EIC also had precedessors, stretching back to the 1940s.
Our goal is to combine what is in this attached document and apply it to the preceding entries on our topic. Can we determine if corruption is too ingrained, too built into the management and leadership structures that Maine DEP and the Maine Board of Environmental Protection now operate under, for reform to be realistic? Could a return to the EIC's decisionmaking structure, and a depoliticized BEP interface with the agency's long accrued experts, but with bureau heads now much more accountable to the public and less vulnerable via openness to political pressure work as a simple and clean reform , when you combine our Reducing Corruption exchanges with your analyses of the data sources I've supplied as pdfs supplied as references.
RESPONSE
Based on the history outlined in the Maine Policy Review article, there are a few key takeaways regarding corruption and potential reforms for Maine's environmental protection agencies:
- Maine had early leadership in developing a water classification system in the 1940s-1950s, ahead of federal regulations. However, there was initially more focus on describing current conditions than setting aspirational goals for improvement.
- The political influence of industries often diluted the strength of regulations and enforcement in the first decades of Maine's agencies. This suggests regulatory capture was an issue early on.
- Passage of the federal Clean Water Act in 1972 drove major advances by requiring technology-based treatment standards and providing funding. This top-down pressure overcame some industry influence.
- Reforms in the 1980s, such as the DEP replacing the EIC, a cabinet-level environmental agency, stronger classification system, and public participation processes helped reduce corruption vulnerabilities.
- However, attorney critiques suggest regulatory capture and leadership tone issues may have resurfaced in recent years at DEP/BEP.
Potential reforms could include:
- Increased public transparency and accountability measures for DEP/BEP leadership decisions.
- Reduced industry/lobbying influence on environmental policymakers.
- Strengthened roles for independent scientific advisory boards and public participation.
- Shifting permitting review from BEP to independent administrative law judges.
- Expanded public interest legal advocacy and enforcement capacity.
- Returning to aspirational goal-setting for waters classifications statewide could inspire publicmobilization.
Overall, it seems a return to the reform spirit of the 1980s with emphasis on transparency, public involvement, reduced industry capture, and goal-oriented leadership could help steer Maine environmental agencies away from current corruption equilibrium patterns. However, securing leadership committed to this shift is key, as is codifying changes in law.
QUESTION
An important example of the present issues facing the public interest and DEP/BEP is the Nordic case before the Maine BEP October 19th. The attached October 16 2023 article describes another conservation organization involved in the appeal of the Nordic project: the Maine Lobstering Union and their attorney Kim Ervin-TuckerRESPONSE
The article raises several concerning issues about the upcoming Nordic case before the Maine Board of Environmental Protection:
- BEP staff have selectively redacted new evidence submitted by opponents from board members' briefing packets, while including Nordic's full brief. This suggests bias and suppression of relevant information.
- There are alleged conflicts of interest with board member Steven Pelletier, who promoted Nordic in a previous role. A motion has been filed for his recusal.
- The board packets excluded evidence like court rulings questioning Nordic's land rights for the project, which opponents argue should inform BEP's permit review.
- There are indications of behind-the-scenes coordination between Nordic, the Governor's office, and BEP leadership to push the project through.
This provides a case study of how regulatory corruption can manifest:
- Industry capture of regulators through conflicts of interest, lobbying access, or revolving door appointments
- Suppression of inconvenient information and narratives
- Lack of impartiality, bias, or prejudice among decision makers
- Failure to exercise due diligence in considering all evidence
Potential reforms echo earlier suggestions:
- Increased transparency and public accountability in decision processes
- Rules to limit industry lobbying access and require recusals when conflicts exist
- Empowered public advocacy and external oversight capacity
- Structural changes to reduce political control over regulatory appointments
The selective information sharing and apparent bias in this case exemplifies the need for greater impartiality, transparency, and public balancing power in Maine's environmental permitting. Without structural reforms, current corruption patterns may persist.
End
