Wednesday, June 7, 2017

PEC: Bill Requiring House/Senate Approval Of Regulations Raises Significant Constitutional Questions

The PA Environmental Council Tuesday wrote to all members of the Senate raising significant concerns about  Senate Bill 561 (Disanto-R-Dauphin) which would require the Senate and House to vote to approve all final regulations promulgated by state agencies; if no vote occurs regulations would die.
PEC points out Pennsylvania already has one of the most robust regulatory review processes in the United States with multiple opportunities for stakeholders and the General Assembly to influence the content of regulation, including having members of the Senate and House sitting on the Environmental Quality Board that adopts DEP’s regulations.
The Council also raised a concern about the constitutionality of Senate Bill 561 with respect to separation of powers of the legislative and executive branches of government.
So far, the bill has been reported out of the Senate Rules and Appropriations Committee through party-line votes with Republicans supporting.
Senate Bill 561 is now in position for a final vote in the Senate.
[Note: At a House State Government Committee hearing Tuesday, Kevin Sunday from the PA Chamber of Business and Industry cautioned members about adopting legislation requiring a vote of the General Assembly on all regulations.]
The full text of the PEC letter follows--
The Pennsylvania Environmental Council respectfully requests that you oppose Senate Bill 561, which requires legislative approval for what are defined by the legislation as “economically significant” regulations.
Pennsylvania already has one of the most thorough and robust processes of any state in the nation for developing, reviewing and finalizing regulatory proposals, with several opportunities for the General Assembly to review and act on a proposal.
Proposed environmental regulations, in particular, go through multiple steps of review by agency officials, public hearings by the Environmental Quality Board and other technical advisory committees, as well as a formal public comment and agency response process.
Proposed agency regulations must then undergo review by the appropriate standing committees in the legislature. Proposed final regulations also undergo review by the Independent Regulatory Review Commission, which provides an additional forum for appraisal of the regulations and comments made by the legislature and public.
Currently, the General Assembly has the option to draft and pass a concurrent resolution to abrogate a regulatory proposal. It has also accomplished this action via legislation, as was seen last year with proposed regulations for the conventional oil and gas industry. Senate Bill 561 alters this established process by explicitly requiring General Assembly approval of “economically significant” proposals.
This is extraordinarily problematic in that it threatens a scenario where a proposed regulation – one that may be required by state or federal law, or is necessary for the protection of public health and the environment – is invalidated merely through legislative inaction.
The legislation also raises significant constitutionality questions with respect to separation of powers.
The public expects and deserves responsive government. This includes assurance that regulatory proposals, expressly authorized by law and necessary for protection of the public, are given full consideration.
We agree that there should be complete vetting of the economic impacts of proposed regulations; that examination should also account for the public benefit of proposed regulations.
Pennsylvania should be pursuing ways to improve the capacity, transparency, and responsiveness of our agencies.
As written, we believe Senate Bill 561 only creates uncertainty by allowing for the short circuiting of an established process that already supports ample public consideration and involvement.
For these reasons, we respectfully ask that you oppose Senate Bill 561. Thank you for your consideration.
For more information on programs, initiatives and special events, visit the PA Environmental Council website, visit the PEC Blog, follow PEC on Twitter or Like PEC on Facebook.  Visit PEC’s Audio Room for the latest podcasts.  Click Here to receive regular updates from PEC.
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