This year, there are several bills before the Minnesota legislature, all currently moving through the House, that would require the executive branch to submit administrative rules and plans to the legislature for approval before they could go into effect. HF 616 (Fabian)/ SF 689 (Eken) would make all new water quality standards subject to prior legislative approval, HF 333 (Newberger)/SF 231 (Brown) would require prior legislative approval before the MPCA could submit a state implementation plan to cut carbon emissions under Obama's Clean Power Plan, and HF 269 (Kresha)/SF 584 (Westrom) would require all rules with a potentially significant economic impact to get prior legislative approval.
This is an approach recommended by the American Legislative Exchange Council (ALEC), which is a conservative, corporate-funded organization that drafts "model" state-level bills to accomplish conservative objectives. The proponents know that it would take very little to stop a bill to "approve" a set of administrative rules--one committee chair, leadership in one house, a governor--and the likely effect would be to stop administrative rulemaking in its tracks.
Legislatures have delegated rulemaking authority to administrative agencies since the late 19th century. The reason is that legislatures are ill-equipped to do the technical analysis and detailed work necessary to put flesh on the bone of broad legislative policy objectives. That is particularly true in the area of environmental law, which is dominated by highly technical standards developed by state environmental agencies and the EPA. And, as Professor Farber pointed out in his blog entry today, administrative rulemaking is subject to requirements that do not apply to legislation: 1. the requirement that rules be based on an evidentiary record; 2. the requirement that the agency provide a reasoned explanation for their decisions; 3. the requirement that rules be consistent with statutes; and 4. the opportunity to get judicial review. Bills at the legislature do not have to meet any of those requirements. Rulemaking also provides a greater and broader degree of public access to the decisionmaking process.
There is a movement among conservative judges to roll back rulemaking authority, particularly now in light of the Obama Administration's stated intent to use executive authority to fill gaps created by a do-nothing Congress. Justice Thomas on the U.S. Supreme Court would do away with it altogether, as he declared in a recent concurring opinion two weeks ago in Department of Transportation v. Association of American Railroads.
For those concerned about science-based environmental protection, this is a dangerous development.
Minnesota Center for Environmental Advocacy
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St. Paul, MN 55101 | (651) 223 - 5969