Finding the right balance between delegation and transparency will be key to any reforms Washington lawmakers advance for rule-making procedures in the state. Photo: hum.wa.gov
Lawmakers come and go, but unelected rule-makers are forever. Or so it seems. Decisions and actions of agencies and regulatory bodies in Washington state often occur far from public view, and insulated from challenge. Yet they can have far-reaching impacts on the state’s economy, and public trust.
- A seemingly unalterable formula from lawmakers used by the Office of Fiscal Management (OFM) to implement the Growth Management Act (GMA) has led to the formalizing in Central Puget Sound of lowball population growth estimates. These result in a lower supply of housing where it is most needed, contributing to skyrocketing home prices.
- A backchannel reinterpretation of a GMA provision by an appointed body, the Puget Sound Regional Council, has turned what were population and jobs growth minimums into new growth caps, or restrictions, for some aggrieved smaller cities.
- The state’s Building Code Council staff deep-sixed from decision-making summary paperwork presented to its board members the opposition of industry groups, based on fire safety concerns, to code amendments the council then adopted as “uncontested.” Caught out in a legal challenge, the council rescinded its actions.
- Washington has used the regulatory process to tie up a proposed Longview coal export terminal for four years of review, and to implement a sweeping new carbon cap rule without legislative involvement.
- With U.S. Environmental Protection Agency (EPA) grant money channelled through a federally-funded northwest tribal fisheries commission, one Washington tribe in a billboard and outreach effort overseen by the regional EPA office, accused farmers of environmentally irresponsible actions toward salmon and undertook what critics in a formal complaint now say was an undisclosed political advocacy campaign.
- Costly Washington state labor contracts with public employee unions have been negotiated in strict secrecy with the Governor’s office since 2002. Lawmakers get only a “yes” or “no” vote on final agreements.
Targeted statehouse solutions may be bubbling up on some fronts, such as GMA reform, or a suggested legislative compromise on the carbon cap. However, broader concerns about the rule-making process are also mounting, and a legislative course correction may be in the offing.
22,000 Pages Of Agency Rules
However, State Sen. John Braun (R-20) writes that the rule-making process subverts lawmaker authority by allowing non-elected officials to set public policy, instead of enforcing it.
“The power to make laws is supposed to reside in the legislative branch, elected and accountable directly to the voters,” he wrote. “That is not the case when bureaucrats make rules.”
Under the Administrative Procedures Act, the state legislature can delegate authority to state agencies for the purpose of implementing a law, but industries as well as some lawmakers are increasingly focused on curbing abuses of the process. So are workers.
The Costs Of Regulatory Overkill
The costs of regulatory overkill are very real to Willy Myers. He is Executive Secretary for the Columbia Pacific Building Trades, and a supporter of the proposed Millennium Bulk coal export terminal in Longview. The state and federal environmental review process began in February 2012, but has yet to be completed. Construction of the facility would create 2,650 direct and indirect jobs, and $435 million in additional economic activity. After opening, there would be 300 permanent jobs and a $70 million annual bump to the local economy.
Four Years And Counting, For Longview Project
Myers in a statement said, “Four years ago, our brothers and sisters in…labor…were excited at the prospect of new family-wage jobs in a community that sees little new job growth. Today, they and their families continue to wait because the regulatory reviews continue on without end…we need to be sure the state’s regulatory process offers a fair and timely review of projects so we don’t lose jobs and investment opportunities.”
Under the Department of Ecology Draft Environmental Impact Statement (DEIS), the facility’s management would be responsible for the carbon footprint of the coal when it is used in other countries, after export. The DEIS is a “vast departure” from normal interpretations of the State Environmental Protection Act (SEPA), according to Association of Washington Business Government Affairs Director Brandon Houskeeper.
Too Much Leeway
However, state laws such as SEPA provide a “tremendous amount of grey area” for agency interpretation, according to Todd Myers, director of the Center for the Environment at Washington Policy Center. Myers formerly worked at the Department of Natural Resources.
“It’s not merely the rulemaking that’s a problem,” Myers said. “It is the discretion within those vaguely written rules that agencies can use.”
Sen. Mike Padden (R-4) is the vice chair of the Senate Accountability and Reform Committee. He told Lens that “when you see a statue that maybe is three sentences long and then you see 17 pages of WAC (Washington Administrative Code) interpreting that (law), you see the problem” with agency rule-writing authority.
Death By A Thousand Cuts
Chris McCabe is Executive Director of the Northwest Pulp and Paper Association. He told Lens Washington operators “have to compete with mills all over the world that don’t have the same federal and state tax burdens, or the same safety and environmental regulations. And when you layer all of those on top of each other…it makes them less and less competitive. The more regulations” in Washington state, “the more cost you add,” for the mills here, McCabe said.
Tom Davis is Director of Government Relations for the Washington Farm Bureau, and has worked for Washington’s departments of fish and wildlife, and agriculture. He said if there are problems for employers, the rule-making process provides no recourse other than to “take it to court, which costs tens of thousands of dollars or more.”
In its “Freedom In The 50 States 2016” subsection on regulatory climate, the Cato Institute ranks only Washington 43rd best of 50 states. The think tank bases its findings on freedoms relating to land use, health insurance, occupational and other regulatory oversight.
Reforms In Colorado
Other states keep a closer eye on rule-makers. In Colorado, the General Assembly reviews rules adopted by state agencies to ensure they comply with agency statutory authority, as well as state and federal law. Rules that do not meet these requirements are rescinded.
Braun proposed a similar review process during the legislative session earlier this year, via SB 6396. The bill would have required new agency rules to expire after one year unless extended by the legislature. However, it would have only applied to new rules. Braun said he intends to reintroduce the measure in 2017. It passed in the Senate but failed to clear the House State Government Committee.
The legislature might try giving more teeth to the state Joint Administrative Rules Review Committee (JARRC), said Padden, who is the current chair. JARRC reviews agency rules if a petition is filed claiming they go beyond statutory authority. The committee can then recommend the governor suspend the rule or that the legislature repeal it.
However, with four Republicans and four Democrats, the vote always results in a 4-4 tie, according to JARRC member Rep. David Taylor (R-15). He told Lens the committee “doesn’t accomplish much” besides raising lawmaker awareness about unpopular rules. While other legislators want more agency rule oversight, he believes laws “should be sufficiently clear so we don’t need rules to implement them.”
That is not realistic, according to State Rep. Sam Hunt (D-22), chair of the House State Government Committee. He also told Lens that legislative review of new agency rules after a one-year grace period would “create a real backlog” for lawmakers and extend legislative sessions even further. Hunt believes the rule-making process already provides adequate opportunity for public comment and discussion.
Lawmakers might take a cue from the State Auditor’s Office. A January 2015 performance audit took issue with the state’s disparate array of rules and regulations, and strongly urged agencies to try harder to consolidate compliance requirements faced by the private sector.
“Coordination on regulatory matters offers many benefits to both businesses and government, including reducing the time and cost of regulatory decisions,” the audit concluded.