Rutland Herald
Editorial

Yes to Act 250

July 28, 2000

The Vermont Supreme Court left no doubt in a ruling released on Wednesday that it is fully within the state's authority to regulate truck traffic from OMYA Inc. on Route 7.

OMYA had appealed a ruling by the state Environmental Board that a proposed increase in truck traffic through Brandon would have damaging effects in Brandon. A proposed expansion of OMYA's quarry in Middlebury had triggered Act 250, bringing the issue of truck traffic within the purview of the state's land use law.

OMYA questioned the fairness of the ruling. A company that increased truck traffic little by little over time by virtue of a gradual increase in business would escape notice from state regulators.

But the increase proposed by OMYA would not be little by little. It was tied to a specific project, the quarry in Middlebury, and Act 250 review of that project required the District 9 Environmental Commission to look at the impact of the quarry expansion on traffic.

Act 250 is ill-equipped to regulate the effects of incremental growth. No one would want state regulators to micromanage the many small changes that occur within a thriving economy. Rather, the law is designed to weigh the impacts of major developments. Thus, if OMYA is facing special burdens, they are the same burdens all major developers face: the need to work within the parameters of Vermont's environmental values.

OMYA was not proposing to increase truck traffic by one or two trucks. It was proposing to double the traffic through Brandon - from 85 to 170 round trips. Already OMYA trucks account for 25 percent of the truck traffic through the village; the increase would have brought it to 40 percent. At present an OMYA truck passes through the village once every four minutes during the work day. That would have increased to once every two minutes.

In upholding the board's ruling, the court discarded the claim by OMYA that the board had infringed on the authority of the Agency of Transportation. Act 250 has primacy over the regulatory authority of other agencies, the court ruled. The court also relied on previous court rulings to find that regulation by the state did not amount to an unlawful "taking" of OMYA's property.

The court's ruling was another in a line of cases upholding the authority of Act 250. OMYA will have to take that into consideration as it pursues its plans to open a quarry in Danby.

Plans for the Danby quarry have provoked stiff opposition from residents in Danby, Tinmouth, and Wallingford who are concerned about truck traffic on inadequate rural roads and about the noise and other effects of the quarry itself. It is impossible to say how a quarry in Danby would fare under Act 250, but the high court's ruling this week ensures that Act 250 ought to serve as a good vehicle for the community to express its concerns.

OMYA has challenged the Environmental Board ruling in U.S. District Court, saying the state has no right to bar use of federal highways or to regulate interstate commerce. Of course, the state regulates the use of Route 7 in many ways, and it also regulates commerce in many ways. It is not clear that the constitutional challenge will get any further than the challenge in state court.

What is clear is that Act 250 has received an important affirmation by the Vermont Supreme Court in the OMYA case.