Governor’s rule-suspension order raises questionsNovember 30th, 2010 by cdunagan
Business and environmental groups have been waiting for the other shoe to drop since Gov. Chris Gregoire announced that she was suspending state rule-making activities. Her declared motive was to provide small businesses “stability and predictability they need to help with our state’s recovery.”
At the time of the announcement on Nov. 17, the governor indicated that her executive order (PDF 14 kb) would not apply across the board. Some regulations would continue to move through the rule-making process. Criteria for exempting rules (PDF 20 kb) from the moratorium were wide enough to slide through nearly any regulation that the governor wishes to pursue.
Regulations may continue through the rule-making process if they are:
- Required by federal or state law or required to maintain federally delegated or authorized programs;
- Required by court order;
- Necessary to manage budget shortfalls, maintain fund solvency, or for revenue generating activities;
- Necessary to protect public health, safety, and welfare or necessary to avoid an immediate threat to the state’s natural resources;
- Beneficial to or requested or supported by the regulated entities, local governments or small businesses that it affects;
- The subject of negotiated rule-making or pilot rule-making that involved substantial participation by interested parties before the development of the proposed rule;
- A permanent rule previously covered by emergency rules; or
- An expedited rule under RCW 34.05.353 where the proposed rules relate only to internal governmental operations.
Let’s face it. To really understand what this means, we must wait for the list of regulations that will actually be placed on hold for the next year or more. On environmental issues, both business leaders and environmental activists have interpreted Gregoire’s move as a relaxation of her aggressive environmental policies. But how far that will go is yet to be seen. Remember, she said recently that we cannot take a time-out on saving Puget Sound, recession or not. (See Water Ways, Oct. 21)
Each agency must report by the end of January which rules they want to suspend and which they want to keep moving through the process, along with justifications for their decisions.
Almost immediately after Gregoire’s executive order was announced, Washington Department of Ecology posted a list of six rules that will proceed. They are related to greenhouse gas reporting, air pollution sources, Water Pollution Control Revolving Fund, Upper Kittitas groundwater management, and chemicals of concern in children’s toys.
At the end of this blog entry, I’ve listed all the Ecology regulations now moving through the pipeline.
Washington House Republicans credited Rep. Ed Orcutt, R-Kalama,
with coming up with the idea of suspending state regulations. In
August, Orcutt sent a
letter asking Gregoire to suspend all regulations except for
those related to health emergencies and fishing and hunting
Orcutt specifically cited Ecology in his letter: “Preliminary research shows the Department of Ecology alone has over 43 FTEs working on 26 rules.”
The Association of Washington Business said in a news release that Gregoire’s order was a good start, but it may not go far enough:
“AWB generally welcomes this action as a move in the right direction, but would like to see the moratorium extended to areas outside formal rulemaking, including policy guidance and other non-essential regulatory work such as the Department of Ecology’s SEPA greenhouse gas reduction guidance. “
Brandon Houskeeper, policy analyst for Washington Policy Center, said the exemption criteria were too broad, possibly allowing agencies to continue with business as usual.
“At least one agency, the Department of Ecology, has already developed a list of rules currently under development that meet the exemption criteria. The following excerpt from an Ecology email states:
“‘Many of you have asked what this means for the draft rules that are in process now that relate to greenhouse gases. Those proposed rules — reporting of emissions of greenhouse gases and amendments to the air operating permit regulations to incorporate federal changes relating to greenhouse gases — will continue as planned.’
“The business-as-usual response from Ecology appears to miss the spirit of the law behind the Governor’s Order… In order for the Governor’s Order to be effective, agencies should focus their efforts on looking for opportunities to honor the Governor’s effort to halt economically damaging rulemaking instead of pursuing exemptions that undermine that intent.”
For updates on Ecology’s thinking regarding the rule suspensions, check out the website Rule Moratorium Update.
In a letter in advance of the governor’s executive order, a coalition of 22 environmental and labor groups warned that a wide-ranging suspension of regulations would be misguided:
“Suspending rulemaking affirms the erroneous view that ‘government is the problem’ and that regulation necessarily comes at the expense of the economy. Opponents of environmental, public health and labor regulation could effectively use the Executive Order to justify and promote the erosion of public protections that have been hard won over the last few decades.”
In a commentary in Crosscut, Knute Berger also took a philosophical viewpoint in addressing the moratorium on rule-making.
“This is not the ideology that is going to advance the progressive cause, that’s going to buck-up the beleaguered public servants in Olympia, that’s going to find a way to protect the people no matter what the fiscal challenges are. It’s not the kind of creative solution-finding that’s going to lead us to a better place.
“It is also a gesture that flies in the face of reality in this sense: that government regulation is seen as hampering business, yet ‘socialism’ is rarely decried when that same government weighs in on the side of business to create laws, loopholes, and programs that benefit and subsidize business.
“Gregoire is buying into a trap where business gets all the incentives and subsidies we can afford (like building more highways, tax breaks, and foisting the costs of pollution and climate change onto the public) yet is held less and less accountable.”
The following summarizes further Ecology’s rules in development from a list provided by Ecology staff (PDF 88 kb):
New source review fees: The revenue from fees under Ecology’s preconstruction permitting program, called new source review, does not cover the cost of operating the program. The Legislature authorized Ecology to increase fees in the 2009-2011 biennium. Ecology will evaluate the fee structure to determine the most appropriate method for assessing fees.
Greenhouse gas reporting: A rule is needed to carry out a new state law that would require reporting for a single facility that emits 10,000 metric tons of greenhouses gases a year and any fuel supplier whose total sales would emit 10,000 metric tons of carbon dioxide a year. (Proposed as exemption)
Motor vehicle inspection: A rule is needed to carry out a new state law that allows for more testing stations, exempting some vehicles from testing and eliminating some test requirements.
General regulation for sources: Rules would address how to treat new sources in non-attainment areas, correct deficiencies in state implementation plan and clean up language. (Proposed as exemption)
Operating permits: An update is needed to comply with Environmental Protection Agency regulations addressing air quality permits for facilities that emit greenhouse gases. The rule would exempt hundreds of sources from air operating permits. (Proposed for exemption)
Shoreline Management Act: State law requires changes to address commercial geoduck aquaculture. Other changes would outline a process for making limited changes to local shoreline master programs and make sure that state shoreline rules are consistent with state laws imposed on local governments.
Model Toxics Control Act: An update is proposed to reflect new policies and scientific information related to cleanup standards, cleanup procedures and other implementation concerns.
Underground storage tanks: Ecology wants to rewrite the rules regarding underground storage tanks to clarify language, change enforcement procedures and revise standards for equipment, maintenance and inspection.
Waste reduction and disposal
Solid waste landfills: Revised rule would adopt new federal regulations for permitting and allow alternate liner designs.
Children’s safe products: Rules would implent the state’s Child Safe Product Act, which establishes a process for reporting chemicals in children’s toys and other products. (Proposed as exemption)
Waste handling standards: Rules would address exemptions for anaerobic digestion, eliminate duplicate record keeping, clarify definitions for take-back centers and other issues.
Water Pollution Control Revolving Fund: Emergency rule addresses how Ecology distributes funds to local governments for controlling water pollution. (Proposed as exemption)
Water Pollution Control Revolving Fund: Permanent rule would change procedures for reviewing and scoring local projects seeking funds through the account.
Water quality standards: Clarification is needed in sections of the standards that have caused confusion.
Reclaimed water: The Legislature directed that new regulations be created to manage the use of reclaimed water by the end of 2010.
Upper Kittitas: This ninth emergency rule establishes a partial withdrawal of groundwater within a portion of WRIA 39 in Kittitas County. The partial withdrawal and restrictions are designed to prevent new uses of water that negatively affect flows in the Yakima River and its tributaries. (Proposed as exemption)
Upper Kittitas: Permanent rule would address how groundwater would be managed in the long run.
Grays Elochoman Instream Resources Protection: Rule would establish instream flows for streams, close subbasins to future withdrawals and establish conditions for future water use in this watershed in Southwest Washington.
Cowlitz Instream Resources Protection: Rule would establish instream flows for streams, close subbasins to future withdrawals and establish conditions for future water use in this watershed in Southwest Washington.
Dungeness Water Resources Management: Rule would protect instream resources, allow Ecology to proceed with water rights decision and manage a specific quantity of groundwater.
Water rights: Rule would guide priorities and work efforts related to water rights approvals.
Dam safety: Rule would increase fees to pay for dam inspections and reviews of engineering plans.
Columbia Basin groundwater: Rule amendments would clarify the amount of natural and artificially stored groundwater, clarify permitting process for withdrawals and clarify rights of existing permit holders.