Senate Committee OKs Bill To Limit Public’s Right To Know Why A Regulation Is Being Proposed

On September 25, the Senate Intergovernmental Operations Committee reported out Senate Bill 398 (Gordner-R- Columbia) which would amend the Regulatory Review Act to prohibit agencies from publishing a statement letting the public know why they are proposing new or amended regulations when they are asking the public for comments.

The vote to report the bill out of Committee was 6 to 5, with Republicans supporting, except for Sen. Tom Killion (R--Delaware) who voted no.

The bill now goes to the full Senate for consideration.

Background

State agencies have included a statement of the purpose and need for a new regulation or why regulation changes are being made in their formal Pennsylvania Bulletin notices to the public since before the 1982 Regulatory Review Act was passed.

Since 1982, the Independent Regulatory Review Commission has required agencies to include a description of why a regulation is needed-- “Explain the compelling public interest that justifies the regulation.  Describe who will benefit from the regulation. Quantify the benefits as completely as possible and approximate the number of people who will benefit.”

In the case of a recent Environmental Quality Board regulation to lower the sulfur content limit for heating oil from 500 to 15 ppm, the Background and Purpose part of the PA Bulletin notice inviting public comments describes in plainer language why the rulemaking is needed-- to address regional haze and visibility impairment as directed by the U..S. Environmental Protection Agency and why it’s important to people’s health to reduce haze caused by tiny pollution particles and how haze is formed.

It also includes a description of the federal requirements and what DEP has done previously on this particular issue and why it is important to meeting air quality standards within Pennsylvania.  And in this case, what Philadelphia has done to adopt a similar requirement.

It also outlines what steps DEP took to review the regulation with various advisory committees and stakeholders before the Environmental Quality Board adopted it as a proposed rule for public comment.

This is handy information for the public to have.

Under Senate Bill 398, only members of the General Assembly and the Independent Regulatory Review Commission would have this information provided to them as part of the regulatory package.  

It would no longer be included in the PA Bulletin notice for the public, businesses and other stakeholders who want to comment on a regulation.

And why?

Sen. Gordner said in his co-sponsor memo to colleagues-- “Additionally, the legislation will allow agencies to provide statements of purpose (SOPs) to IRRC and the [House and Senate] committees, but will remove the requirement that those statements be published in the Pennsylvania Bulletin. There have been instances when courts have interpreted SOPs in a way that is either inconsistent with the regulations themselves or inconsistent with the intent of the General Assembly. This legislation seeks to correct those instances.”

Gov. Wolf vetoed similar legislation sponsored by Sen. Gordner in 2016 saying, “this bill decreases the transparency in state government by preventing state agencies from publishing explanations of why regulations are needed.  Public notice, which is required by current law, helps inform interested parties of the need and reason behind the changes in the rules. We should be increasing-- not decreasing-- transparency in our government.”

Of course that information would still be on the record with House and Senate members and the IRRC.  The public could also get it, but not without digging, in DEP’s case, through the Environmental Quality Board webpage to find the original posting of that information that would go directly to House and Senate members and IRRC.

So what’s the point?  To try to get a small legal advantage.

But to people in the real world what it really does is make it harder for the public, businesses and other stakeholders to know why a regulation is being proposed.

Sen. Doug Mastriano (R-Adams) serves as Majority Chair of the Senate Intergovernmental Operations Committee, and can be contacted by calling 717-787-4651 or use the contact form on his website (he has no public email).   Sen. Wayne Fontana (D-Allegheny) serves as Minority Chair, and can be contacted by calling 717-787-5300 or send email to: fontana@pasenate.com. 

(Diagram: How some legislators would design a self-operating napkin, but comparable to the Regulatory Review Process now, courtesy of Rube Goldberg.)