Analysis: What If The Senate And House Had To Adopt Laws Like DEP Adopts Regulations?
There’s been lots of political rhetoric lately about the need to make agencies like the Department of Environmental Protection more “accountable” by making them more “transparent” and about how DEP “sneaks” through regulations.
Regulations, they say, are out of control and more oversight is needed by Senate and House members who are accountable to voters.
But, what if lawmakers had to use the same process to adopt laws as DEP must use to adopt regulations?
There is one big difference right upfront.
DEP and its staff are prohibited from accepting any campaign money, gifts, Kentucky Derby trips or Penn State football tickets from the people they regulate (or anyone else) in hopes of influencing their actions.
Members of the General Assembly can and do accept campaign contributions (no limit), gifts, meals and tickets (reporting only $250 or more) and trips (reporting only $650 or more) all the time from people who want the opportunity to influence what they want them to do (or not), as long as they report who they got it from, most times months or a year later.
What DEP Does
To develop any regulation or technical guidance, DEP follows a process dictated by law and policy--
-- Regulatory Agendas: Every 6 months DEP publicly publishes a regulatory and non-regulatory agenda of proposed changes in regulations and technical guidance in process and actions expected over the next 6 months to a year. These agendas are published in the Pennsylvania Bulletin and maintained online for the public.
[The General Assembly does not. Most times little or no public warning is given for amendments or bills to be considered, let alone introduced. Especially during budget time, the whole process can be short circuited to give no notice at all.]
-- Proposals: Any regulation and technical guidance proposal must be developed within the laws and statutes authorizing DEP to take actions or by court action and must be based by law on “reliable data and sound science.”
[The General Assembly, obviously, isn’t bound by anything like this, but it is uniquely empowered to adopt entirely new proposals based on whatever information they think is appropriate, scientifically justified or not.]
-- Review Of Draft Proposals By Advisory Committees: Before a proposal is even considered for action by the 20-member Environmental Quality Board which adopts all of DEP’s regulations, a draft regulation, and typically technical guidance proposals, are publicly reviewed by one or more advisory committees established by law made up of people and companies and most times the public (unless excluded by law) to be affected by the proposal.
Consideration by these committees is done in full view of the public at publicly noticed meetings with agenda handouts typically available 2 weeks before the meeting (or at least that’s the standard they try to achieve).
Every meeting also has an open public comment period where anyone can offer comments.
[The General Assembly, obviously, has no similar public process for draft bills it considers prior to introduction of a formal proposal or at any other time.]
Several of DEP’s key advisory committees feature either members of the House and Senate or committee members appointed by the House and Senate.
These include DEP’s Citizens Advisory Council, Agricultural Advisory Board, Small Business Compliance Advisory Committee, Cleanup Standards Scientific Advisory Board, Aggregate Advisory Committee, PA Grade Crude [Oil] Development Advisory Council, Mining and Reclamation Advisory Board, the Climate Change Advisory Committee, among others.
At the very least, laws passed by the House and Senate stipulate the make up of advisory committees in terms of skills and backgrounds of members or, sometimes, members named by specific business associations or unions.
-- Consideration Of Proposals By EQB: The 20-member Environmental Quality Board-- 4 members of the House and Senate-- typically the chairs of the Senate and House Environmental Committees-- 5 members of the Citizens Advisory Council (which also has members named by the House and Senate) and the heads of various state agencies-- publicly meet to consider proposed regulations.
Part of this process includes a 30-question regulatory review form that documents the state or federal statutory authority or court order the regulation is based on, the data and scientific information used to develop the regulation, other approaches considered to achieve the same objective, how the proposal compares to similar proposals adopted by other states and to federal standards, the benefits to the environment and the public and the environment, the impact of the proposals on people, local governments, small businesses, and industry that would be affected, its cost to administer and to those that will have to implement it and more.
[The General Assembly only prepares a Fiscal Note for each bill outlining the public cost of a bill when it is considered by the Appropriations committees more than half way through the consideration process in both the Senate and House, not when a bill is being developed or when it is introduced.]
In the case of proposed changes in permit review or other fees, DEP also prepares a Fee Analysis Report that includes a workload analysis, proposed costs and revenue trends and projections. This report is presented to DEP’s advisory committees as part of the early regulation development process as well as the EQB at least at 2 points in the process.
As part of its action on a proposed regulation, the EQB establishes a formal public comment period-- 30, 60, 90 days or longer-- and if appropriate, public hearings.
[The House and Senate, obviously, has no public comment periods like this. They rely on committee meeting notices (however short or long) and bill calendars to provide “notice” to the public something is moving. Or not.]
-- Review By Attorney General: Each proposed regulation is reviewed by the elected state Attorney General for “form and legality,” meaning whether a regulation is properly authorized by state law. [Obviously, the work of the Senate and House is “reviewed” by the separately elected Governor, but only the bills and resolutions they actually pass.]
-- Public Notice Of Proposals Open For Comment: All proposed regulations approved by the EQB for public comment are published in a notice the Pennsylvania Bulletin along with a description of the proposed changes, the statutory authority they are based on, the fiscal impact of the proposal and references to the Regulatory Analysis Form and other backup information that can be requested.
The notice also describes the time allotted for public comments or notice of the public hearings and how comments can be submitted, contacts at the agency for more information, the steps taken to consult with advisory committees and what those comments were and the benefits, costs and compliance information on the regulation. Click Here for an example. (page 1777).
DEP also publishes notice in the Pennsylvania Bulletin of new or proposed changes to technical guidance for public comment.
In addition to these notifications, DEP created the free eNOTICE service in 2000 members of the public, including legislators, can subscribe to to receive email notice of when comment periods are open for regulations and technical guidance (as well as when permit applications are submitted in the area you live in).
[The public can subscribe to the General Assembly’s website to track bills of interest through the legislative process and to receive notices when meetings are called, however, it lacks all the information required of each regulation as previously described and notices of meetings are from a few days to hours before they happen to consider a bill. Or not.]
--Written Record Of Comments, Responses On Proposal: The EQB and DEP are required by law and policy to consider each public comment they receive during the public comment period on a regulation, technical guidance and other proposed actions.
There is a written record of comments made, by whom and then later a written response to each comment is part of the package for consideration of a final regulation.
With DEP’s enhanced eComment webpage, anyone can also see and read the comments submitted by anyone on a proposal.
[There is no similar requirement or process for the General Assembly.]
-- Review Of Proposal By IRRC: The Independent Regulatory Review Commission-- a 5-member independent commission appointed by the Governor, Senate and House-- reviews all proposed regulations (and final), accepts public comments as well as comments by the Senate and House oversight committees during its review.
The EQB must respond to each of these comments as part of the consideration of the final regulation.
[The General Assembly, obviously, has no similar process.]
-- Review Of Proposals By House, Senate: The House and Senate are also sent each and every proposed regulation for their review and comment. Their comments are sent to the IRRC at the proposed stage.
This ENTRE process is repeated when a proposed regulation moves to becoming final--
-- Regulatory Agenda
-- Written Record Of Comments, Responses On Proposal And Suggested Changes Made
-- Draft Final Proposals
-- Review of Draft Final Proposal By Advisory Committees
-- Consideration Of Draft Final Proposal By EQB-- Including filling out all the forms again
-- Review of Final Proposal by IRRC
-- Review of Final Proposal By House, Senate
-- Review By Attorney General
-- Publication of Final Regulation Or Technical Guidance In PA Bulletin, if everything is OK.
Of course, the House and Senate have additional review options after the Independent Regulatory Review Commission has acted on a final regulation which include killing a regulation by adopting a resolution which is presented to the Governor for his action.
It often takes 2 or more likely 3 years for a regulation to go from a concept discussed with an advisory committee to being published as a final rule with all the reviews and opportunities to comment, public notices, transparency and accountability measures along the way.
With respect to the rhetoric on “accountability” to voters for decisions made, there is no doubt elected House and Senate members are held accountable one time every 2 or 4 years all at once for all the dozens of issues they dealt with in their last term long after a decision is made and final by the 253 members of the General Assembly.
Obviously, DEP is also accountable to the voters first through the elected Governor who appoints the Secretary, Deputies, Bureau Directors and Senior Managers in the agency.
The primarily difference with DEP is that it is also held accountable by the laws it administers, the House and Senate, the Independent Regulatory Review Commission, the entire regulatory review process and the public TWICE for EVERY decision it makes at the time it makes them on EACH regulation-- first at the proposed stage and again at final.
DEP doesn’t have the option to blame the other 252 members of the General Assembly for a decision it makes.
And ultimately it is held accountable by the courts if a regulation or a decision it makes based on a regulation is challenged and the House and Senate which always has the power to change the law at any time, subject to the review by the Governor.
Who Is More Transparent?
The question is-- who is more transparent and accountable during its decision making process-- DEP or the House and Senate?
Clearly, the process DEP is required to follow by law-- which the House and Senate themselves do not-- is orders of magnitude more transparent when compared to the legislative process.
And that isn’t even considering how campaign contributions, gifts, free meals, football tickets and trips may influence anyone’s opinion. Or not.
And just as clearly, DEP isn’t “sneaking” through any regulation because they all go through a very public process with multiple notices directly to the House and Senate and the public over 2 or 3 years.
If this is “sneaking,” DEP is doing a very poor job of it.
The House and Senate would do well to adopt many of the same rules of transparency and accountability for themselves as they require DEP and state agencies to follow, BEFORE adding new layers of bureaucracy and red tape to the regulation adoption process.
Because, in most ways, the House and Senate have a more important job, they ultimately adopt all the rules and regulations we all follow in the form of laws (subject to the Governor’s review) and they can do anything they want for any reason.
(Written by David E. Hess, former Secretary of DEP. Comments should be sent to: PaEnviroDigest@gmail.com.)
[Posted: May 28, 2019]
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