• Time Is Right For Debate on Consolidating Environmental Concerns
  • April 30, 2003
  • Law Firm: Lathrop & Gage LLP - Kansas City Office
  • The most exciting thing about the election season is the debate, concern and anticipation of change. We discuss anticipated change for the better and change for the worse. We talk about how our candidates will change the system, putting their own bias towards positions that we embrace. But the central focus is always change. In 1974, Missourians changed their structure of government, which resulted in the merger of dozens of environmental-oriented organizations into the Missouri Department of Natural Resources. This was a superb effort and, for the most part, has resulted in improved Missouri environment with excellent preservation of our state parks. I, of course, am not biased.

    I am frequently asked how would I change the administration of Missouri's environmental protection effort. A suggestion I made in 1993 still has merit today. Ten major citizen environmental commissions reside in the Missouri Department of Natural Resources. They are all designed to assist in rulemaking, provide guidance on planning functions, administer grants, hear appeals and provide enforcement direction. Citizens volunteer to serve on these commissions and the commission slots are allocated based on formulas passed by the General Assembly.

    The system in general works, but tends to breed myopia instead of broader vision. The time is absolutely right to consolidate our commissions. I would consolidate the ten major environmental commissions to three: air, water and land. I would limit the power of these commissions to rulemaking, grants, planning, policy and concurring recommendations for enforcement actions against the citizens of the state.

    I would consolidate appeal, variance and other "quasi-judicial functions" into a formal judicial body titled the Environmental Board of Review. The Environmental Board of Review would be a court of first impression with its decisions appealed directly to the appellate courts. This "specialty court" would focus strictly on environmental matters and conceivably could hear appeals of actions of the Department of Conservation where appropriate.

    This revised structure provides several advantages. First, while specialty remains, the breadth of experience grows. In the water program, for example, the erosion control expertise from the Soil and Water Conservation Commission carries over to the Clean Water Commission. The soil-related experiences travel to the Water Pollution Control Program for non-point source runoff issues and turbidity.

    Second, the Governor's value as the chief executive setting policy for the state does not diminish under this structure. The director of the Department of Natural Resources reports directly to each of the boards, presenting the positions which he believes, based on his representation of the Governor, should be the direction of public policy within the state. Besides appointing the commissioners, the Governor and the citizens that vote for him influence the outcomes.

    Finally, and maybe the most important, the Attorney General would have difficult conflict issues extinguished. Each commission should be served by its own state employed counsel. Currently, however, the commissions are provided legal advice by the Office of the Attorney General.

    The Attorney General is elected, and is justified in a position that that election gives him a right to participate in the public policy side of many issues. But under the present system, if the Attorney General presents a policy position before a commission, his assistant (who serves to give legal advice to the commission) is placed in a difficult scenario. This conflict is a choice of supporting his employer's position or giving legal advice which may conflict with that position.

    The new commissions would be expanded in size to provide continuity of interests under the current statutes.

    In addition, reported case law would be expanded through reported opinions of the proposed Environmental Board of Review. This would enhance the quality of environmental law in this state, as few cases have reached reportable decisions.

    Change is the motivator of any election process. Changing the commission process in Missouri could certainly lead to improved environmental performance.