Stormwater + Politics = Compromise?

Several people have contacted us to inquire about how to rank or score the track record of legislators who supported the recent weakening of the stormwater rules through a "compromise" in the MD General Assembly. Using the term "compromise" as a euphemism for weakening of the regulation is a variety of "spin" that should be made clearer. The notion of compromise suggests the environment got something out of this, which is not the case. It is more accurate to say this transaction "weakened" the rules or laws. While our organization does not and cannot participate in partisan politics but we can offer the following informed view about how the overall process works:

One advantage of the so called "compromise" or weakening of the stormwater regulations that that has been unsaid in most of the trite explanations being sent around to irate environmentalists by "apologists" is that it also allows legislators to appease the maximum number of constituents without appearing polarized. The legislators covet both the support of builders and also environmental voters in an election year. The political theater merges the varied needs of many interest groups. Everybody has a different agenda and nobody gets anything done unless they both give and get a little. It is a perverse and cynical system that rewards people of both good faith and bad by giving them all an incentive to cooperate in some instances with passing bad laws just so we can at times pass some good ones too. As voters and citizens, we need to do better than this antiquated system. Legislators who care nothing about one set of laws will stonewall or withhold their support for the sole reason that they can use good law as a bargaining chip in order to get bad ones passed. And vice versa. They will exchange their support or withhold it in order to get something else passed that was what they or their supporters really cared about. I consider this morally bankrupt because it is a form of horse trading in which the public interest is an afterthought or perhaps only one if not the last factor considered in many of these transactions. With 2400+ laws to review in a session, some legislators eventually find themselves in a haze where all laws look alike to them. The real question they ask themselves is can I trade my support or withhold it in such a way for me to advance my agenda, stay elected or please my constituents? It is the way things are done, and a politician who does not play by such rules risk being ineffective or not staying in office. All of them do this to some extent and all have very different thresholds for what they are willing to compromise and how far they will either reach or stoop on any given day or any given piece of legislation in order to stay in the game. They all must give a little in order to get a little.

The problem with Stormwater was that the builders successfully confused the issue by distorting what was sacrificed. Worse, it remains unclear what if anything the environment obtained in the transaction.There is still confusion from many on these points and this was deliberate by those primarily seeking to rollback the stormwater laws. In sum, the emergency regulations provided an extension of time for builders to use outmoded and weaker environmental laws for an unspecified number of projects and also an opportunity to give local jurisdictions more time and loopholes to craft waivers for projects that they insisted (but never really documented) deserved an extension of time or a waiver. It was second bite at the apple for business interests who had failed previously to win these things during the 2+ year MDE promulgation process and who had already had considerable time to stack and front load a huge number of projects into various pipelines prior to the May 4th deadline they had known about for a long while. Frankly, it was and resulted in an extension for those who were already on extension. It was also obvious from the start that the Stormwater Act was the "lady or the tiger" in this session. The opponents and proponents represented two extremes; those who want the Bay cleaned up and those whose "jobs" plainly rely to some extent on wrecking the existing laws that represent business as usual.

Elected officials risked alienating either of the two extremes. The original Holmes Bill was so extreme it was not likely to pass in its original form. Its sponsor had to have known this and so he stacked it with so much stuff that he was prepared to accept compromise in order to get at least some of what he really wanted all along. Then (according to them) like a knight on a white horse, a group of "leading environmentalists" joined forces willingly with other legislators who similarly either brokered or originated a weakening that appeased the builders (we’ll never know which and it probably does not matter which based on the end result). These retail compromisers (retail by implication because each had a figurative self interested price tag for their own participation) packaged the ultimate weakening that allowed the politicians to appear to be both supporting the builders and the environmentalists at the same time. A magic pill to dispense with a massive election year headache. I believe this was the true reason so many legislators were so eager to embrace emergency regulations. It was an elegant deal. It even came with a blue chip assurance from an environmental score card group that assured them that a vote for the compromise would not count against their environmental scorecard. Who wouldn’t take such a deal? It was a sweetie.

The artful explanation now being sent around by legislators who voted for the emergency regs generally champion not the merits of the emergency regulations but instead applauds the spirit and principles of "compromise" as a virtue. It validates a system that sometime gives up a lot in order to appear to be fair and equitable for the environment when really on this occasion it was dealing with a business conspiracy that hired expensive and morally bankrupt lobbyists to help vanquish some deadlines, and weaken some environmental protections that were inconvenient and that the builders had failed to torpedo even after about two years of public promulgation procedures and public review. It clouded both our minds and the waters of our Bay with much that was not said about the true effects of the compromise. And it found a wall of support in Annapolis because the common interests of all concerned favored getting re-elected (or looking heroic, or protecting their base of power etc) more than holding the line for protection of the environment. The questions now should not be posed to those legislators who supported the compromise. The real questions should be asked of those legislators who did not! These answers would undoubtedly be far more instructive than the present form letters being sent out to rationalize why a deal was needed at all. There was not much wrong with leaving the stormwater act alone really. It was just that without some form of rollback, the political marketplace had little to sell or transact. Without a fake threat and an even more fake appearance of needed compromise, the only interest group that was in a position to win, was the ecology of the Bay. Most understood this, including those of us fighting to protect the 2007 Act. Most elected officials had to have grasped that this bizarre transaction was a safe gambit or maybe even inevitable one but it conveniently came with the blue chip, full faith and credit of the "leading" environmental groups. Once the stormwater deal faced opposition from a second environmental lobby, those who made the deal were fighting not just for the environment but also to protect their authority to credibly make such deals on behalf of the environment in the future. In truth they often seemed to be fighting less for the Bay and more to defend their wheeling and dealing ways and to discredit those who had the effect of challenging their authority to "lead" on behalf of the environmental movement. In the aftermath, there is a bonafide question that should be answered about exactly who the environmental leaders involved with the negotiations were leading other than themselves?

Several legislators who are usually good on the environment voted for the emergency regs. This has further confused some voters. But remember, that the building was on fire and some of these people climbed out of the best window or loophole available to them under the circumstances in order to protect themselves from getting burned politically. Others did not. Some believed that since compromise was probably inevitable as a way of life and politics that this one was the very best we and the environment could get–even while it was also the best deal that developers’ money could buy. For the purposes of an environmental or legislative endorsement, I think it is more gray than black and white. One would have to look more closely at a particular legislator’s motives and circumstances to get the full story.

We hope this helps.