Update, March 23, 2022: A day after this blog was published, the DEP wrote a letter to the LRB stating that "given the clear and specific process laid out in the Regulatory Review Act, there is no legal authority for the LRB to substitute its own interpretation of the statute as a rationale for failing to perform its administrative role in the regulatory process," and demanding that the LRB publish the DEP's RGGI regulation. The LRB refused, however, and on February 4, 2022 the DEP filed a lawsuit in the Pennsylvania Commonwealth Court to compel the LRB to act. The docket is available here. Meanwhile, the Pennsylvania Senate is expected to try to override Governor Wolf's veto of the Senate resolution disapproving the regulation on April 4 or 5.
In my last blog, I discussed how Republican leaders in the Pennsylvania General Assembly were using the state Regulatory Review Act (RRA) to delay finalization of the DEP’s proposed CO2 Budget Trading Program regulation, which would enable the Commonwealth to participate in the Regional Greenhouse Gas Initiative (RGGI).
This blog is about the latest twist in that story: after the Wolf administration delivered the regulation to the state Legislative Reference Bureau following a “form and legality” review by the Attorney General, the Bureau refused to publish it in the Pennsylvania Bulletin, thereby blocking it from formally becoming law. The reason? The Bureau is misinterpreting the RRA. The result: unless the Wolf administration goes to court, Pennsylvania will have to wait for months to experience the benefits of RGGI: healthier air, lower carbon pollution, and the opportunity to invest hundreds of millions of dollars in the Commonwealth’s communities and workers.
Wait – the Legislative Reference what?
The main job of the Legislative Reference Bureau, or LRB, is to draft bills for legislators. Its role in Pennsylvania’s regulatory rulemaking process generally goes unremarked because, as a rule, it’s unremarkable: at the end of the long process prescribed by the RRA, the LRB publishes regulations in the Bulletin. That’s how regulations are officially "promulgated" in Pennsylvania.
What the LRB does not do is make important legal or regulatory policy decisions - at least not until now. Things changed in late November, when, after the House failed to take timely action on a "resolution of disapproval" passed by the Senate, the DEP delivered the RGGI regulation to the LRB and got this response: "our office is not authorized at this time to publish the Environmental Quality Board Final Rulemaking #7-559: C02 Budget Trading Program, submitted November 29, 2021. Currently, Senate Concurrent Regulatory Review Resolution l (S.C.R.R.R. 1) disapproving Final Rulemaking #7-559 is still pending before the House of Representatives."
For reasons explained below, this was a legally incorrect decision, and it will have consequences. If the LRB were fulfilling its lawful duty, the RGGI regulation could be published by the end of the year, and that would put Pennsylvania in position to participate in the first RGGI allowance auction of 2022, in March.
In refusing to publish the regulation, however, the LRB is choosing to embrace a dubious and self-serving interpretation of the RRA by House and Senate Republicans that would delay Pennsylvania's participation in RGGI until the second quarter of 2022 (at the earliest) and set a harmful precedent for all state agency rulemakings
How did we end up here?
Under the RRA, the legislature can kill a proposed regulation by first passing a timely “resolution of disapproval” and then, if the Governor vetoes the resolution, by overriding the veto with two-thirds supermajorities in both chambers. For present purposes, the key section of the law is 7(d), which says that when a resolution of disapproval has been passed (or “reported") by an appropriate legislative committee, “the Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer, from the date on which the concurrent resolution has been reported, to adopt the concurrent resolution . . . If the General Assembly does not adopt the concurrent resolution or override the veto in the time prescribed in this subsection, it shall be deemed to have approved the final-form . . . regulation.” [Emphasis added]
The Senate Environmental Resources and Energy Committee reported a timely resolution of disapproval on September 14, and the Wolf administration is reading the unambiguous language of the statute to mean what it says: that after September 14 each chamber had 30 calendar days or ten legislative days, whichever is longer, to pass the resolution.
The Senate voted on the resolution on October 27, its tenth legislative day after September 14, passing it by a 32-18 margin. By the time the DEP submitted the regulation to the LRB on November 29, the House had had nineteen session days since September 14 (and 76 calendar days) and had not passed the resolution. As a result, the DEP’s CO2 Budget Trading Program was “deemed approved" under section 7(d) of the RRA, and the Wolf administration then took the logical next steps: it submitted the regulation to the state Attorney General for a "form and legality" review under the Commonwealth Attorneys Act, and then to the LRB.
The Attorney General has approved as to form and legality, but House and Senate Republicans are arguing that the RRA gives the chambers separate and consecutive 30-calendar-days-or ten-legislative-days periods to adopt a resolution of disapproval – and unfortunately, the LRB has agreed with them. There is nothing in the RRA to support this interpretation. The General Assembly must adopt the resolution within the time prescribed in section 7(d) of the RRA, and because the House did not do so on time, the resolution and the RRA’s bar on promulgation have expired. Given the LRB's position, however, you might say that the resolution is undead – a sort of politically reanimated zombie.
What do you do with a zombie?
According to the internet, the way to kill a zombie is to get at its brain. In this case, the brain of the zombie resolution of disapproval is the House Republicans’ interpretation of section 7(d) of the RRA. Getting at it will probably take a lawsuit against the LRB and the House Republicans – that, or a directive to the LRB from the Joint Committee on Documents (yes, there's a Joint Committee on Documents in Pennsylvania), which oversees the LRB.
Absent such action, the LRB’s refusal to publish the regulation will delay Pennsylvania’s participation in RGGI by months because Senate Republicans will threaten an override of Governor Wolf’s inevitable veto of the zombie resolution after it passes in the House, even though they don’t have the votes. Then the LRB will presumably continue to balk until an override vote fails (or is never called). While these delay tactics may be aimed at the Governor, it’s ultimately the people of Pennsylvania they’ll hurt. For the people’s sake, the Wolf administration should seek redress in the courts.