On Thursday, 22 conservation, clean energy and community-based environmental protection groups sent a letter to all members of the House opposing a 5 bill package of regulatory and permit “reform” proposals.

The groups said, “The General Assembly is already given authority to review and act on regulations created and implemented by the state regulatory agencies, and this grouping of bills before your committee would not serve the meritorious goal of creating a more efficient and effective government.

“These bills, in large part, create extraneous and added layers of bureaucracy, impede the roles of our executive branch agencies, and undermine the protections enforced and implemented by our state government.

“These bills put our environmental protections for Pennsylvanians at risk.”

The House State Government Committee reported out two of the bills-- House Bill 1237 and House Bill 1960 and amended a third-- House Bill 209--  but kept it in Committee.  It took no action on House Bill 1959 or House Bill 1792 because members were called to the Floor for other legislative business.  Click Here for more.

The text of the letter sent by the 22 groups follows--

The undersigned members of the conservation, water, clean energy, and environmental protection community respectfully ask for your opposition to House Bills 209, 1237, 1792, 1959, and 1960. In the coming weeks, you may be asked to vote for this package of bills.

The General Assembly is already given authority to review and act on regulations created and implemented by the state regulatory agencies, and this grouping of bills before your committee would not serve the meritorious goal of creating a more efficient and effective government.

These bills, in large part, create extraneous and added layers of bureaucracy, impede the roles of our executive branch agencies, and undermine the protections enforced and implemented by our state government.

These bills put our environmental protections for Pennsylvanians at risk. Here are some additional comments:

House Bill 209

This bill is an unwise and unwarranted intrusion into the traditional oversight responsibilities of the standing committees of the General Assembly. Pennsylvania has an expensive, full-time and professional legislature, and a periodic review of the effectiveness of the statutes, regulations and policies in a standing committee’s area of expertise and jurisdiction is a critical function of the committee system.

House Bill 209 adds another layer of bureaucracy and taxpayer-funded staff to the General Assembly. The current committee system is heavily invested with the time of members and scores of dedicated staff on both sides of the aisle in the House and the Senate who develop expertise in certain areas of law and policy.

This bill suddenly creates an independent office with three committee members and two staff members that could create tension with the committee system, confuse the public, and have the office frequently wander into regulatory issues far beyond the expertise of the committee’s members or its limited staff.

The name “Independent Office of the Repealer” also suggests bias in how the legislation is envisioned to work given that the neutral intent should be for the office to review regulations, not predetermine any outcome of that review.

House Bill 1237

This legislation would give either the House or the Senate effective veto power over the promulgation of almost all new regulations. Most regulations would meet the threshold in the bill of an economic impact of at least $1 million.

Any new regulation would need to be approved by both the House and the Senate within 10 legislative days or 30 calendar days, whichever is longer, or the regulation essentially dies. This process would make it very difficult for the executive branch, using existing legal and statutory authority, to develop new regulations including those that protect public health and the environment.

By giving each chamber an effective veto over new regulations and denying the governor the ability to veto these legislative decisions, the bill would skew the balance of powers among our branches of government and is likely unconstitutional.

House Bill 1792

This bill prohibits state executive agencies from “reissuing the same regulation in the future, or promulgating a regulation that is substantially similar, unless the new or revised regulation is specifically authorized by a law enacted after the date of the joint resolution disapproving the original review.”

This weakens the permitting and rulemaking authority of the agencies doing the work of the Commonwealth as a part of the Executive Branch.

Further, this may be unconstitutional by upending the balance of power of the state government.

This legislation goes further to say if the General Assembly adopts a concurrent resolution by majority vote in both chambers, the Governor must return the concurrent resolution to the General Assembly within ten calendar days after it is presented, or else the concurrent resolution will be deemed approved by the Governor.

This bill sets-up unrealistic expectations for thorough review and inadequate opportunity for earnest public participation in the process.

House Bill 1959

This bill mandates that state agencies contract with third-party professionals to review permit applications subject to the bill’s definition of a “permit decision delay.”

House Bill 1959 does not take into account the staff and budget resources that are available to an agency to review permits.

For example, the Department of Environmental Protection (DEP) has suffered from longstanding budget cuts and staffing shortages that have hampered the agency’s ability to process permit applications.

DEP’s budget has been cut 40 percent in the past 13 years, and the agency has lost 22 percent of its staff the past 15 years, according to former secretary David Hess. Yet, this bill would virtually mandate third-party permitting in many cases because the General Assembly has deprived DEP of the resources to do its job.

House Bill 1959 would then be an unfunded mandate for DEP because it would force the already time and cash strapped agency to create the third-party review program, and provide training and constant supervision.

Many permits are also reviewed and approved by DEP based on agreements of delegated authority by the Environmental Protection Agency and other federal agencies.

The outsourcing of the reviews of these federally delegated permits would likely be illegal. These are only a few of the problems that would arise from third party permit reviews at just one agency.

House Bill 1959 also provides that all existing permits are exempt from the requirements of any statute or regulation passed after the permit was originally issued. This grandfathers in archaic permits and means that modern laws and regulations will not apply to them.

House Bill 1960

A key provision of House Bill 1960 would allow “the regulatory compliance officer to establish guidelines for waiving any fines or penalties that the officer’s agency would impose on a regulated entity for violation of a statute or regulation that the agency enforces if the entity reports a violation to the regulatory compliance officer before a fine or penalty is imposed on the entity.”

In order to be eligible for the waiver of fines and penalties, the regulated entity must report to the regulatory compliance officer the steps it has taken or will take to remedy the violation.

There are many problems with this provision. We are not opposed to the concept of waiving fines and penalties for regulated entities in some circumstances, but those decisions are properly made by secretaries, deputy secretaries and other agency officials who are publicly accountable, more familiar with the legal duties and responsibilities of the agency, and who have the advice of legal counsel.

It is not appropriate for a staff regulatory compliance officer to be making these decisions.

There are also cases when waiving a fine or penalty is entirely inappropriate. In these cases, fines or penalties would be appropriate for reimbursing the Commonwealth, for making sure the regulated entity takes corrective measures seriously, or for other public purposes.

Please do not hesitate to contact us if you have any questions or would like further information.

The groups signing the letter include the Sierra Club PA Chapter, Mehoopany Creek Watershed Association, Natural Resources Defense Council, Newtown Creek Coalition, Conservation Voters of PA, Nature Abounds, PennFuture, Schuylkill Headwaters Association, PennEnvironment, Blue Green Alliance, Nations Parks Conservation Association, Vote Solar, League of Women voters of PA, Sustainable Futures Communications, Eastern Coalition for Abandoned Mine Reclamation, Philadelphia Solar Energy Association, White Clay Watershed Association, Clean Air Council, Elks Creek Watershed Association, Sustainable Pittsburgh, Aquashicola/Pohopoco Watershed Conservancy and Environmental Justice Center of Chestnut Hill Church.

Click Here for a copy of the letter.

Related Stories:

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

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

[Posted: Feb. 9, 2018]

2/12/2018