Question: When is legislative "oversight" really legislative overreach - an attempt to give the Pennsylvania General Assembly absolute power over changes to the Commonwealth's regulations for fracking, power plants, and a host of other important issues - all without actually writing new laws?
Answer: when it's the kind of "oversight" proposed by House Bill 965, a seemingly modest - but actually very radical - piece of legislation pending in the Pennsylvania House of Representatives. On Wednesday, the House Consumer Affairs Committee approved HB 965 by a 16-10 vote, and the power-grab bill could come to a vote by the full House as soon as this weekend. (An identical bill, Senate Bill 562, has already been passed by the Senate).
Why is HB 965 radical? Because it would give small groups of legislators unprecedented power to stall changes to regulations administered by Pennsylvania's 27 executive agencies, from the Department of Environmental Protection, to the Departments of Health or Labor and Industry. For example, if HB 965 became law, the House or Senate Environmental Resources and Energy Committee might be able to block the DEP from implementing much-needed changes to regulations to protect Pennsylvanians from "fracking" and other oil and gas production activities, even though the General Assembly has passed a statute (Act 13) that requires such changes, and the public and industry have put extensive time and resources into commenting on those changes.
Here are three critical things to understand about HB965 as it heads towards a vote in the House:
- Minor changes to laws can have major consequences. HB 965 would make "procedural" amendments to Pennsylvania's Regulatory Review Act, a law that establishes the process for how regulations of the DEP and other Commonwealth executive agencies are made. At a glance, these changes may seem innocuous. But the "procedural" changes would overhaul Pennsylvania's rulemaking process by giving legislative committees the power to stop votes by the Independent Regulatory Review Commission, or IRRC. (Such votes are a necessary step in Pennsylvania's complicated rulemaking process). All a committee would have to do is notify the IRRC that it "intends to further review" the regulations. The result? Regulations frowned on by a handful of legislators could get stuck in limbo, potentially for so long that the agency that drafted them has to start over. Basically, the General Assembly wants to have its cake and eat it too - to pass general statutes that make agencies work out difficult details, while also micromanaging agencies' decisions for political reasons. Committees could even try to block agencies from promulgating regulations that Federal law requires - e.g., try to block the DEP from implementing the EPA's Clean Power Plan to reduce dangerous carbon emissions from existing power plants.
- The General Assembly already has oversight over Pennsylvania's rulemaking process. The stated purpose of HB 965 is "increase legislative oversight of the regulatory rulemaking process." This implies that the General Assembly currently doesn't have much of a role in that process. In fact, the legislature already appoints four out of five members of IRRC (the Governor appoints the fifth), and under the Regulatory Review Act legislative committees have the power to pass resolutions disapproving proposed regulations. Thus the General Assembly's role in the rulemaking process is both robust and well defined, and it provides ample time for vetting proposed regulations. HB 965 isn't a solution to any real problem - it's a stratagem to prevent the DEP and other agencies from effectively regulating dangerous industries (which, incidentally, sometimes contribute handsomely to legislators' campaigns).
- HB 965 would make it harder for the public to participate in the rulemaking process. The Regulatory Review Act requires executive agencies to draft "statements of need" explaining why new regulations are necessary (e.g., because a Federal law like the Clean Power Plan requires them), and agencies often use these statements to explain why they have written proposed regulations in a particular way. HB 965 would prevent these statements from being published in the Pennsylvania Bulletin, where the public can easily read them online. Why prevent the public from having the information it needs to understand and evaluate the new regulatory proposals? We need more transparency and public participation in our rulemaking processes, not less.
To sum up: it simply isn't the case that the General Assembly needs more "oversight" over the regulatory review process, and HB 965's solutions to this non-problem would only create new problems. That's why NRDC and a growing number of other organizations that care about Pennsylvania's environment (and want Pennsylvania's government to work) oppose the bill. It's legislative overreach at its worst.