The Pennsylvania Environmental Council, in partnership with the Environmental Defense Fund, sent the following communication to members of the General Assembly expressing our concerns with an amendment to Senate Bill 1. The same troublesome language is also contained in Senate Bill 2.
EDF Action, the advocacy partner of Environmental Defense Fund, and Pennsylvania Environmental Council (PEC) want to reiterate our opposition to Senate Bill 1 (P.N. 26) and provide context for our position. Please note that our opposition to this legislation is based on amendment language inserted into the bill which would alter the presentment clause of the Pennsylvania Constitution (Article III, Section 9). The legislative language of concern is on page two of the bill (lines 11-22) and reads:
§9. Action on concurrent orders and resolutions. Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the questions of adjournment, disapproval of a regulation or termination or extension of a disaster emergency declaration as declared by an executive order or proclamation, or portion of a disaster emergency declaration as declared by an executive order or proclamation, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill. This should not be placed before the people of Pennsylvania.
(emphasis added to highlight the amendment language)
This is a drastic amendment that would upend the carefully balanced, already extensive process for adoption of environmental and other public protections in Pennsylvania. It is also unnecessary, given that the General Assembly already has the authority to abrogate rulemakings.
Impact of Amendment Language
If adopted, Senate Bill 1 would provide the General Assembly with unilateral power to disapprove proposed regulations, for any reason, through a simple majority vote on a concurrent resolution. This language overrides Section 7(d) of the Regulatory Review Act which explicitly requires legislative resolutions of disapproval concerning proposed state agency regulations to be presented to the Governor in accordance with Article III, Section 9. [71 P.S. § 745.7(d)].
The amendment would be applicable to rulemakings from Executive Agencies (e.g., Department of Environmental Protection, Department of Labor & Industry, Department of Education, et cetera) as well as Independent Agencies (e.g. Public Utility Commission, Game Commission, and Fish & Boat Commission). This violates fundamental separation of powers principles and makes it impossible for executive and independent state agencies to effectively implement the statutes they administer. Regulations are promulgated pursuant to existing law; agencies can only exercise powers to them delegated by the General Assembly. The General Assembly has the power to change those laws.
In addition, the Regulatory Review Act and other statutes already provide for a series of checks and balances on Executive action, including affording the legislature multiple opportunities to review and disapprove a proposed regulation. Under existing law:
- The legislature can pass a concurrent resolution to disapprove a rulemaking.
- The legislature can abrogate a rulemaking at any time through the normal legislative process.
- The legislature can override a veto by the Governor in either instance with a two-thirds vote in each chamber.
If the General Assembly believes that an agency regulation violates Pennsylvania or Federal statutory or Constitutional law, they or any party with standing can also seek redress in the courts.
State agencies have the technical expertise to develop and administer regulations. The current rulemaking process allows for input from the public and professionals – including the regulated community. Senate Bill 1, if adopted, would allow the legislature to abrogate rulemakings for any reason, without any requirements that public hearings be held or that expert input be allowed.
Bipartisan support for environmental protection and public health is of paramount importance to both of our organizations. We are always ready to have hard conversations about all ideas on the table and how to strike a balance between competing priorities, while driving meaningful environmental and economic progress. Senate Bill 1 fails to move Pennsylvania forward on finding common solutions to problems that the public wants from its leaders. Its outcome will lead to more conflict and uncertainty.
We urge you to oppose Senate Bill 1 as amended. Thank you for your consideration.