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House Passes Bills Changing Regulation, Permit Process In Ways That Puts Politics Ahead Of Science, Adds More Bureaucracy
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The House Tuesday passed 5 Republican bills groups like the PA Environmental Council and Environmental Defense Fund said would threaten public health and put politics ahead of science and law in protecting the environment.

The bills passed by a party line vote-- Republicans supporting.

The bills give the General Assembly authority to kill regulations by doing nothing and creates new bureaucracies taking permit reviews away from DEP, puts a cap on the number of regulations, requires the elimination of two regulations for every new one adopted and sets up a procedure to waive penalties for violations.

The bills include--

-- Killing A Regulation By Doing Nothing: House Bill 1237 (Keefer-R-York) authorizes the General Assembly to kill an economically significant final regulation from any agency by doing nothing and not passing a concurrent regulation to approve the regulation.  Nothing was changed in the bill after 30 tries Monday to amended the bill to exempt critical regulations, like those dealing with environmental protection. (House Fiscal Note and summary.)  The House passed the bill by a vote of 101 to 89. 

This legislation is similar to a bill-- Senate Bill 561 (DiSanto-R-Dauphin)-- passed by the Senate on June 13 by a party-line vote (Republicans supporting) allowing the General Assembly to kill regulations by doing nothing.  The bill is in the House State Government Committee.

-- Taking Permit Reviews Away From DEP, State Agencies Giving It To Third Parties: House Bill 1959 (Rothman-R-Cumberland) establishes the Pennsylvania Permit Act which requires agencies to create and develop a navigable online permit tracking system and takes authority to issue certain permits away from state agencies like DEP and creates a new bureaucracy of third-party reviewers was amended in minor ways on the House Floor Monday.  (House Fiscal Note and summary.)  The House passed the bill by a vote of 112 to 75.

There was no mention of the fact the General Assembly and Governors have cut DEP General Fund money going to DEP by 40 percent over the last decade with the resulting loss of over 25 percent of its staff.  Click Here for more.

-- Cap On Number Of Regulations: House Bill 209 (Phillips-Hill-R-York): Establishes the Independent Office of the Repealer, a new bureaucracy to undertake an ongoing review of existing regulations; receive and process recommendations; and make recommendations to the General Assembly, the governor, and executive agencies for repeal.  It also places a cap on all regulations and requires agencies to delete two regulations for every new regulations agencies seek to adopt.  It is modeled after policies adopted by the Trump Administration.  None of the attempts to amend the bill succeeded on Monday.  (House Fiscal Note and summary). The House passed the bill by a vote of 108 to 83.

--Waiving Penalties: House Bill 1960 (Ellis-R-Butler) which requires each agency to appoint a Regulatory Compliance Officer with the authority to waive fines and penalties if a permit holder “attempts” to comply was amended twice in minor ways on the House Floor Monday.  (House Fiscal Note and summary.) The House passed the bill by a vote of 116 to 72.

-- Repeal Any Regulation By Resolution: House Bill 1792 (Benninghoff-R-Mifflin) Gives the General Assembly the ability to repeal any state regulation in effect by a concurrent resolution by requiring a single vote in the Senate and House.  The process is modeled after a federal procedure used by the Trump Administration to repeal regulations (sponsor summary). Currently, the General Assembly can repeal any regulation by passing a new law which involves a more extensive committee review and several votes each by the Senate and House.   The bill was amended in minor ways on the House Floor Monday. (House Fiscal Note and summary.) The bill was passed by the House by a vote of 105 to 82.

PEC, EDF Comments On The Bills

The PA Environmental Council and Environmental Defense Fund sent a letter sent to all members of the House Monday opposing the legislation saying--

"(T)his suite of legislation will create greater uncertainty for regulations and permits, and unduly threaten public health and environmental protections by positioning politics ahead of science and law. 

"While the Pennsylvania Environmental Council and Environmental Defense Fund welcome open and objective discussion on improving agency and regulatory performance, these bills fall well short of those considerations.

"The General Assembly already has ample authority to review and act on regulations.

"In our view, the Commonwealth is better served by advancing inclusive, constructive dialogue on shared goals instead of legislation that will only foster further difficulty and disagreement. 

"For these reasons, we urge you to oppose these bills. We would welcome efforts by the General Assembly, with full participation by agencies and stakeholders, to establish constructive discussion and opportunities to better harmonize environmental protection."

The text of the letter follows--

Dear Representatives:

This week the House may vote on a suite of bills – House Bill 209, House Bill 1237, House Bill 1792, House Bill 1959, and House Bill 1960 – introduced in the name of government reform.

In truth, this suite of legislation will create greater uncertainty for regulations and permits, and unduly threaten public health and environmental protections by positioning politics ahead of science and law. 

While the Pennsylvania Environmental Council and Environmental Defense Fund welcome open and objective discussion on improving agency and regulatory performance, these bills fall well short of those considerations.

The General Assembly already has ample authority to review and act on regulations.

In our view, the Commonwealth is better served by advancing inclusive, constructive dialogue on shared goals instead of legislation that will only foster further difficulty and disagreement. 

Our specific objections to these bills are as follows.

House Bill 209 (P.N. 3162) 

This legislation establishes an “Office of the Repealer” whose charge is to provide independent review of existing regulations and statutes for potential elimination or amendment. However, this effort is ultimately directed by a committee of only three political appointees.

While we agree that there should always be opportunity to review and improve regulation, it should be done in a manner that is truly objective and inclusive, and that also seeks changes that improve public benefit.

As written, House Bill 209 does not meet those principles. Further, at least with respect to environmental provisions, there are already means to pursue amendment of regulations through the Environmental Hearing Board. The General Assembly has also shown, through legislation abrogating proposed rulemaking, that is already has sufficient ability to intercede.

House Bill 1237 (P.N. 2996)

This legislation requires passage of a concurrent resolution in the General Assembly before any “economically significant regulation” may become effective and implemented. In short, mere inaction of the General Assembly could negate a rulemaking required pursuant to existing state or federal statute or regulation.

This is an indefensible change to existing law, which already grants the General Assembly the ability to stop a rulemaking proposal. It could ultimately subject the regulated community to federal enforcement, and invite legal challenge on state constitutional grounds.

House Bill 1792 (P.N. 3168)

This legislation prohibits an agency from promulgating new or revised regulations when a concurrent disapproval resolution has been approved by the General Assembly – but irrespective of whether that resolution actually become law – unless new statutory authority has been enacted.

This is a questionable expansion of authority that perversely could inhibit attempts to improve or even moderate regulations. As we have said, the General Assembly already has established authority to accomplish the stated outcomes of this legislation.

House Bill 1959 (P.N. 3163)

This legislation contains provisions on permit reporting and transparency. While we fully support enhanced transparency and the sharing of information on agency activity and performance, House Bill 1959 contains language that would allow third parties to participate in permitting decisions without any standards with respect to qualification, preventing self-dealing, protection of public disclosure and involvement, or intrusion on agency authority.

The framework established by this legislation will only lead to vastly expanded litigation on permitting decisions. The General Assembly should instead prioritize ensuring that agencies have the resources needed to perform their mission and meet the needs of both the public and regulated community.

House Bill 1960 (P.N. 2861)

This legislation establishes agency regulatory compliance officers. Our concerns with this legislation is that it provides these individuals with the authority to legally interpret laws or regulations with respect to compliance, and to establish means that would waive fines or penalties for self-reported violations of the law without actual assurance that those violations are remedied.

These decisions, along with others contained in the bill, should be made only be appropriate authority within the agency.

While we support the concept of improving communications and understanding  between agencies and the regulated community, this legislation oversteps appropriate agency function and authority.

For these reasons, we urge you to oppose these bills. We would welcome efforts by the General Assembly, with full participation by agencies and stakeholders, to establish constructive discussion and opportunities to better harmonize environmental protection.

Thank you for your consideration.

John Walliser

Senior Vice President, Legal & Government Affairs 

Pennsylvania Environmental Council

Andrew Williams

Director, Regulatory and Legislative Affairs, U.S. Climate and Energy

Environmental Defense Fund

Click Here for a copy of the letter.

Related Stories:

Proposed Bills Call For Narrowing Grounds For Appealing DEP Permits, Reducing Terms Of Environmental Hearing Board Judges

PennFuture: Package Of House Republican Bills On Regulations, Permitting Moves Toward Unprecedented Rollback On Environmental Protection

House Committee OKs Bills Creating New Bureaucracies To Take Permit Reviews Away From DEP, Waive Penalties, Create Office Of The Repealer, Cap Number of Regulations

House Committee Republicans OK Bill To Kill Regulations By Doing Nothing

Analysis: How Do The Senate, House Use The Tools They Have Now To Review Agency Regulations?

PA Environmental Council: General Assembly Already Has Ample Authority To Review Regulations

22 Groups Express Opposition To So-Called Regulatory Reform Bills By House Republicans

House Committee Chair Releases Regulatory Overreach Report, Endorses Bill Authorizing Repeal Of Regulations By Doing Nothing

Action Required:

Who Will Be PA’s Official State Amphibian?  The Eastern Hellbender Or Wehrle’s Salamander?  Time To Weigh In

[Posted: May 1, 2018]


5/7/2018

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