On Oct. 28, just a day after he was handed Senate Bill 562, Gov. Tom Wolf returned it to the Legislature – without his signature – and included a veto message excoriating the attempt by the General Assembly to grapple away additional legislative control over the executive branch’s regulatory authority under the Pennsylvania Constitution.
This latest dustup between the GOP-dominated Legislature and the Democratic governor was part of the Legislature’s longstanding effort to retain some authority – and, ideally, to expand it – over how the executive branch implements and enforces the laws.
This conflict led to the creation of the Independent Regulatory Review Commission in 1982, a legislative commission given authority to review and approve or disapprove regulations (except those from the Game Commission and Fish and Boat Commission) based on the public interest.
Senate Bill 562’s journey through the Legislature to its ultimate fate started at the very beginning of the current legislative term in January 2015, when the bill’s prime sponsor, Senate Majority Whip John Gordner, a Republican, circulated a co-sponsorship memo seeking support for the measure among his Senate colleagues.
According to Gordner, the idea behind the legislation came from his experience serving in the state House of Representatives. While sitting on the House Professional Licensure Committee, he saw greater legislative involvement with the oversight of regulations than any time before or since in his state service.
“It really showed me the importance of the Legislature giving serious consideration to the regulatory process and to making comments and suggestions as a regulation was being proposed, rather than complaining about regulations after they were finally adopted,” he said.
He noted during his service in the Senate, which started in 2003, oversight committees in the chamber rarely shared regulatory text with members.
This led to Senate Bill 562, which would alter the current regulatory review process to provide for greater legislative oversight by requiring oversight committee chairs to distribute copies of regulations to members within five days of receipt, outlining the committee process regarding the adoption of comments to regulations, dissuading the introduction of regulations during the Legislature’s July recess and prohibiting the publishing of statements of purpose and interest in regulations.
Importantly, the legislation provides a process for legislative committees to halt or delay the regulatory process by allowing notification to the IRRC that it disapproves or wishes to further review a regulation.
Through this simple notice provision, a legislative committee could effectively halt or seriously delay the implementation of a regulation.
Additionally, the bill would extend the time by which the Legislature, through concurrent resolution, can take steps to stop a final form regulation from being published.
The current regulatory review process allows for, but does not mandate, legislative review or comment of regulations.
According to information provided by the IRRC, both the commission and standing legislative committees review dozens of proposed and final form regulations every year.
In 2015, the commission reviewed 32 final form regulations and 42 temporary regulations, which are also reviewed by standing committees.
“Legislators can and should be involved in the process, and not wait until all of a sudden it’s before IRRC and you’re now complaining about what’s in those regulations,” Gordner said in response to questions about the bill.
While the bill originally passed the Senate unanimously, provisions inserted by the House that increased the controversial nature of the legislation made subsequent legislative action fall largely along party lines.
When the bill was finally sent to the governor at the end of October, it did not have the support of a veto-proof majority in either chamber.
In vetoing the bill, Wolf said he could not put his signature on the measure since it could grind the regulatory process to a halt and impede the ability of the executive branch to implement laws passed by the Legislature.
“In promulgating regulations, executive agencies are simply exercising legal authority already granted to them by the Legislature,” he explained. “Existing law already supplies the Legislature with significant influence in the regulatory process. The General Assembly has acted in many instances pursuant to this process to object to and significantly change regulations that members have felt exceeded the authority of the executive branch.”
The veto drew a mixed response from organizations outside the Capitol. Business groups like the Pennsylvania Chamber of Business and Industry were disappointed with the governor’s action.
“We support efforts to reform the regulatory review process – this made a lot of sense to have the legislators who originally craft the law that authorizes agencies to craft regulations to have a direct role in making sure the regulations do (what they intended),” said Kevin Sunday, director of government affairs for the organization.
Sunday argued Pennsylvania’s current regulatory structure is overly complicated and hurts business development in the state – something he believes could have been alleviated by Senate Bill 562.
“At the outset, the regulations are so complex,” he said. “While we definitely support sensible regulatory programs, if you really want to improve our economic climate you have to reduce government red tape, and that starts with making sure that when these regulations are being crafted, that’s being done in a sensible, balanced manner.”
Supporting the decision to veto the bill were environmental groups, who felt their agendas were being targeted.
“Senate Bill 562 would have given lawmakers the ability to block critical environmental safeguards that have broad-based support – including efforts to tackle the pressing problem of climate change and providing health protections for families and children from the negative impacts of fracking,” read a statement from the Clean Power PA Coalition, which includes environmental advocacy groups like PennEnvironment, PennFuture, the Natural Resources Defense Council, the Clean Air Council and the Sierra Club. “The legislation was designed to give powerful special interests and big polluters an outsized role in our political process while shutting out Pennsylvania families.”
Earlier this legislative session, the General Assembly began the initial legislative steps needed to stop the publication of controversial new oil and gas regulations.
Spanning the administrations of Wolf and former Gov. Tom Corbett, the state Department of Environmental Protection was working on the regulations seen by the environmental community as essential to protecting Pennsylvania due to the recent expansion of natural gas drilling in Pennsylvania.
Opponents of the regulations saw the process as a means to stifle growth in the oil and gas industry while placing especially unfair new requirements on Pennsylvania’s oil drilling industry.
“We have one branch that is disrespecting the other two branches; that calls for disapproval,” House Environmental Resources and Energy Committee Chairman John Maher, an Allegheny Republican, said in May. “The (environmental) protections already exist in statute.”
The start of the legislative process to overturn the regulations drew the ire of the environmental community.
That move was stopped after an agreement between the Wolf administration and the General Assembly allowed for a portion of the new regulatory scheme to take effect while the Department of Environmental Protection worked on some areas of legislative concern.
As for what the future holds for his attempt to rein in executive rulemaking authority with additional legislative control, Gordner said he plans on reintroducing the bill in the next legislative session, which starts in January.
This time, he said, he is hoping for more cooperation from the Wolf administration to develop something that is palatable to both sides.
“I guess my frustration is not having a good dialogue with the governor’s staff in regard to seeing how to make it acceptable,” he said. “So, I’m hoping that process is better in the coming calendar year.”
Wolf press secretary Jeff Sheridan noted both the governor’s office of legislative affairs and the governor’s policy office weighed in on the legislation before
The General Assembly will hold its first legislative session day of the 2017-18 session on the first Tuesday in January for the annual swearing-in of legislators. ■