PEC Letter on “Regulatory Reform” Legislation

PEC has sent the following letter to the House State Government Committee concerning a suite of legislation aimed at changing how regulations are reviewed and approved in Pennsylvania.

February 5, 2018

To:       Members of the House State Government Committee
Re:       February 6, 2018 Voting Meeting of the Committee

Dear Representatives:

Tomorrow the House State Government Committee will meet to 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, much of this legislation’s provisions 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 (PEC) welcomes open and objective discussion on improving agency and regulatory performance, this suite of legislation falls well short of those considerations. The General Assembly already has ample authority to review and act on regulations. It has, although very rarely, chosen to use that authority. 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. 176)
This legislation establishes an “Office of the Repealer” whose charge is to provide independent review of existing regulations and statutes for potential elimination or alteration. However, this effort is ultimately directed by a committee of only three political appointees. While we agree that there should always be opportunity to improve laws, 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 request amendment of regulations through petition to 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. 1237)
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 stature or regulation. This is an indefensible change to existing law, which already grants the General Assembly to affirmatively act 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. 2434)
This legislation prohibits an agency from promulgating new or revised regulations on a matter 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. 2856)
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, and then seek an accounting of performance.

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 appears to overstep 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