Reprinted with Permission from the Author:
The "Obstructionists" and Act 250
by Joyce Marcel
Annette Smith, who lives in rural Danby, is a perfect example of a
citizen who uses laws like Act 250 to protect the Vermont environment.
Some call her an "obstructionist," but she thinks she is just using common
"I don't like being labeled an obstructionist, but Act 250 itself
labels us as 'opponents,'" she said. "What I am for is the promotion of
positive economic development and growth that enhances our rural quality of
life and agriculture -- something the state is not doing enough about."
Smith, a farmer and a manufacturer of garden furniture and wooded
purses, is the executive director of Vermonters for a Clean Environment
"Through citizen participation, we assure that the environment is
protected and the citizens who live around development have the right to
participate and are encouraged to be involved," Smith said. "That's the
heart and soul of Act 250 -- citizen participation and protecting the
Smith's greatest success so far has come not through Act 250 but
through Act 248, which comes into play when new power plants are proposed.
Last year, she and a group of like-minded citizens in southwestern Vermont
managed to block a billion-dollar gas plant and pipeline proposal.
"The gas project was going to use Vermont's land, air, water and
people to make money for its developers, and there were very few benefits
for Vermonters," Smith said. "I did my homework, researched it, and
realized there was a mad dash to build many more natural gas power plants
than there was a supply of gas. With over 50 plants proposed just for New
England, it was clear that they were not all going to be built, and there
was a long-term concern about supplies to fuel these plants. Since the
electricity was to be sold out of state, it was hard to know what the
benefits would be for Vermonters. I had written four letters to the
newspapers raising concerns and questions about this project before I ever
learned that it would cross my land."
When the project was first proposed, gas was regarded as a cheap
source of energy.
"Since that time, the price of natural gas has as much as
quadrupled," Smith said. "In March, Vermont Gas Systems, the only gas
company in Vermont, asked the PBS for a 28 percent increase in rates. And
that is typical throughout the country now."
Citizens from Bennington all the way to Rutland joined together to
stop the project; they formed VCE.
"About 150 property owners were affected, and anybody who was
within half a mile of this pipeline was concerned over safety issues,"
Smith said. "Ultimately, about 10 towns voted to oppose the gas project,
and even the governor, who originally supported the project, said he wished
the gas developers would just go away. But for the record, this project
has never been called off."
Now Smith and her group are focusing on Act 250 because OMYA, Inc.
has announced plans to mine marble at nearby Dutch Hill. The Swiss-based
company plans to file for an Act 250 application in the Spring.
"Dutch Hill is a beautiful scenic mountain valley," Smith said.
"Pictures of it are used by the state to market Vermont to tourists. But
it also has a large deep deposit of pure marble which OMYA owns and wants
OMYA grinds the marble, which is not suitable for building, and the
resulting calcium carbonate is used in paper, paint, plastic, food and
"It is a ubiquitous, friendly chemical," said John Mitchell, a
senior vice-president at OMYA.
One frequent complaint about Act 250 is that developers are never
sure of how their projects will be received. In this case, Smith said, it
is easy to evaluate OMYA's plan.
"There are numerous Act 250 criteria that it will not comply
with," Smith said. "Dutch Hill is beautiful and the Act 250 issues are
tremendous ---noise, traffic, resources, and aesthetics."
Mitchell sees it differently.
"The mine will be on 23 acres at the bottom of Dutch Hill, in a
place very difficult to see unless you are right on top of it," Mitchell
said. "This will be a hole that goes down into the earth several hundred
feet over time. When the quarry is opened initially, there will be some
visible changes in the configuration of the base of the hill until berms
and trees are constructed or grow to screen the activity. That will not be
The area already has many marble quarries, Mitchell said.
"There's been marble quarried in Danby since 1830," Mitchell said.
"The Vermont Marble Company (OMYA's predecessor) has had an underground
quarry in Danby since 1904. So quarrying is no stranger to Danby. But a
lot of strangers in Danby don't understand quarrying."
Mitchell said his company will file "with all the appropriate
studies and analyses under the 10 criteria. And if it meets those
criteria, it expects to proceed with its project. OMYA anticipates working
with a variety of citizen and state organizations to achieve a project that
everyone can live with."
Truck traffic will be an issue in the hearings.
"We're trying to move marble from the quarry to our plant in
Pittsford," Mitchell said. "The company is studying other alternatives for
transportation -- rail, pipelines, conveyor systems. Based on the results
of our engineering studies, we'll include the appropriate methods in the
According to Smith, after public meetings were held in Danby,
Tinmouth, Middletown Springs and Wallingford, several towns joined together
to oppose the trucking.
"A transportation compact has been created," Smith said. "VCE is
involved. Five towns have joined together; they are being represented and
are working with the Conservation Law Foundation, strengthening local
control over the roads. And if and when OMYA files an Act 250 application,
then the road issues for those towns will be represented by CLF."
Mitchell cautioned that if CLF rewrites the road ordinances to
prohibit OMYA's trucks, others might not be able to use the roads as well.
He called it the "law of unintended circumstances."
"You have to be careful about what you wish for," Mitchell said.
VCE will be the lead local organization when it comes time to put
on a case in Act 250. But those plans may hit an early wall if H.-475, now
in the Senate, becomes law.
Two separate parts of H.-475 might affect VCE. The first is a
pilot program that puts 12 cases, spread out across the state, "on the
record" at the District Commission level, so witnesses do not have to
testify again if the commission's decision is appealed. The second is an
amendment that prevents groups like VCE from appealing commission
On-the-record makes commission hearings more formal and legal than
they are now.
"The OMYA case might be a good example of the kinds of major
hearings the bill is designed to affect," Smith said.
The time necessary to do an on-the-record case is daunting, Smith
"OMYA has had more than a year to prepare Act 250 case," Smith
said. "Because of the magnitude of this particular project, many issues
require expert testimony. We may have to hire a dozen expert witnesses.
When they file, we will have an unknown period of time, but maybe it will
only be a matter of weeks or months, to hire our dozen expert witnesses,
get them up to speed, and raise the money to pay them -- a substantial
amount, upwards of $200,000."
If the Act 250 laws are changed, VCE might also have to prepare
witnesses and pre-file testimony under new rules of evidence with which the
District Commission has no experience.
"This becomes a legalistic and daunting task for citizens of the
region," Smith said.
Losing the right to appeal a commission decision would be a great
handicap, Smith said.
"If there are questions about the District Commission's decisions,
or if there are bad decisions, we could appeal to the Environmental Board,"
Smith said. "If they don't agree with us, OK, it ends there. On the other
hand, the developers can appeal all the way to the Supreme Court. The
citizens never have that right. Now, citizens can participate in Act 250
without lawyers. Many citizens do. That's remarkable. The process works
for citizens without having to pay lawyers. That's something we need to