The reasons that the regulatory process stands as a serious problem to growth and economic development may seem almost overwhelming in the mesh-mash of their sheer volume, but what stands as the real problem is really quite simple — the misuse of the process for political purposes.
The process of permitting or granting approvals for economic development and infrastructure projects shouldn't be used as leverage to control markets, advance agendas or disburse political favors.
Not one regulation in the mountains of our regulatory laws was ever put into place with the stated intent of doing such things, so why are citizens so accepting of the situation when that is how the laws get used?
In every case, the public was persuaded into accepting these restraints upon our freedoms in the name of promoting "public health and safety." Any time bureaucrats or politicians use them otherwise we should all cry foul. And, yet we see it happen almost every day, so much so, that no one takes notice, not even those being victimized by the abuse.
A lurid case in point was attempted recently before the Yellowstone County Commissioners, with a room full of union sympathizers publically imploring the commissioners to misuse their power by imposing a policy differently in dealing with one citizen than was their standard practice in dealing with everyone else.
The unions wanted the commissioners to use their power and authority, to "twist the arm" of a company to force them into joining the union. While there was much discussion of easements, and property rights, jobs and wages – no one objected to what was happening simply because it was a highly inappropriate, if not illegal, way in which to govern. Fortunately, our county commissioners rose above the sordid political maneuvering. However, at least one state legislator was on record, begging them to do otherwise. She seemed not to know that government is supposed to treat all citizens the same. It's called the rule of law.
The practice is not the least bit unique to county government, nationally, at almost the same moment in time, President Obama was misusing power entrusted to him, to reject a private venture that had complied with all regulatory laws to assure their safe operation. Despite the fact that Keystone Pipeline XL deserved being granted a permit, since they had been given a "green" light, so to speak, in having met with all requirements written in law, President Obama rejected their permit for his own political reasons.
The environmental groups who applied pressure on the President to do so, have no problem with the fact that what they implore of the President is to abuse his power. They are asking him to refuse the permit in order to advance their controversial political agenda, one which circumvents the due process of establishing public policy, as well as manipulates the market place.
While the environmentalists have at moments tried to cast the Keystone decision as a matter of health and safety, they readily admit that the ulterior motive is to block the use of oil sands in Canada. No matter the issues of Canadian oil sands, our regulatory process was not intended for such manipulations (although there are those of us who believe that that really is the true purpose behind most regulations).
At a municipal level, planning departments across the country are using the imposition of rules and regulations to leverage socializing agendas that are desired, primarily, by paid professional staff (bureaucrats). Also, quite frequently, they use their power to grant permits to blatantly confiscate private property for public entities. They even have a wonderful term they use in an attempt to make this process sound legal, if not moral. They call it "exactions". Its basic premise is very simple: "If you want this project permitted, or at least approved in a timely fashion, then you better give us something." Sometimes what they want is a bike path, sometimes it's a stop light, sometimes it's the installation, at private expense, of some public infrastructure, like a sewer line, etc.
"Exactions" happen every day in the back rooms of city offices across the country. Locally, planners tried, not long ago, to include it as a written standard practice in the city-county growth policy. It was rejected by Yellowstone County Commissioners.
To go on — everyone knows how notorious Montana is for allowing special interest groups (most often funded by out-of-state contributions) to use the courts to bog-down private enterprises which have otherwise followed every law asked of them. The corpses of those would-be investments and businesses whose demise is attributable to this failure of our regulatory process are far too many to even begin to list.
This consistent and entrenched abuse of power to regulate is in large part what stands behind the common complaint made throughout Montana about the long permitting times endured by businesses and infrastructure projects – a quagmire of red-tape and hoops and hidden-agendas that are disincentives to private (and sometimes public) investment in the state. It seems that Montana public officials and bureaucrats are better than most at leveraging power which has been granted to them, for purposes other than how they use it.
At a public roundtable discussion, held recently, an engineer complained to US Senator Jon Tester about infrastructure projects in Montana, which take as much as a year to get their permit.
The comment was nothing new, another Montana engineer speaking in Williston, ND, last spring, spoke of his amazement that permits were processed in a matter of weeks in North Dakota, compared to months in Billings, Montana.
Interestingly, in subsequent comments about what he could do to help the development of Montana's energy industry, of all things Sen. Tester mentioned, he never mentioned the one thing about which he could have the most influence, reducing the regulatory red-tape that prevails in Montana.
Yellowstone County Commissioner Jim Reno has often voiced what might be a very good solution, since it's not likely any politician will have the political courage to tackle the problem in any other way. Mr. Reno suggests establishing a time limit in which a project is to be permitted. If that permit fails to be issued in such timely fashion the project stands automatically approved – all in the name of pubic health and safety, of course.
The Big Sky Business Journal
P.O. Box 3262
Billings, MT 59103