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Governor Walker Signs Bill giving the Governor More Authority over Agency Rulemaking

May 27, 2011

Governor Walker gained veto power over rules drafted by state agencies and other elected state officials when he signed into law a new bill authored by Rep. Tom Tiffany (R-Hazelhurst). Known as “Regulation with Representation,” Assembly Bill 8 makes substantial changes to the rulemaking process of state agencies. Currently when a state agency proposes a rule, it is sent to the Legislature for review. Under the new bill, the rules will first pass through the Governor’s office for approval and subsequently be reviewed the Legislature.

Governor Walker sees this bill as a remedy for a system that puts too much power into state government bureaucracy. Walker defends the bill as an opportunity to make the rule-making process more accountable to the public.

Currently, any challenges to rulemaking must be brought in Dane County. The new bill allows challenges to be brought in the county in which the challenge arises. This provision’s purpose is to allow for the exercise of local expertise in deciding the outcomes of the challenges.

This post was authored by GLLF's intern Lane Oling, a 2L at the University of Wisconsin Law School. 

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EPA, DOT Introduces Next Generation of Fuel Economy Labels

May 27, 2011

The EPA and DOT unveil new fuel efficiency label requirements. The new label requirements reflect the large increase in efficiency standards created under the Obama administration. The new labels provide more comprehensive information regarding fuel efficiency information; including estimated annual fuel costs, savings, as well as information on a vehicle’s environmental impact. These new labels represent the most dramatic overhaul to fuel efficiency labels in the last 30 years since the program began.

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EPA Seeks Public Comment on Regulation Review Plan

May 27, 2011

The EPA is inviting the public to comment on its plan for regulatory review introduced in President Obama’s Executive Order 13563 titled, “Improving Regulation and Regulatory Review.” The E.O. calls on federal agencies to consider “how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome.” The E.O. instructs federal agencies to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency’s regulatory program more effective and or less burdensome in achieving its regulatory objectives.”

The EPA has released its preliminary plan titled, “Improving Regulations: A Preliminary Plan for Periodic Retrospective Review of Existing Regulations.” Among other things, the EPA, through its plan, seeks to:

  • Replace outdated paper reporting with electronic reporting
  • Improve transparency by expand public disclosure of pollution, compliance, and other regulatory information, and provide communities with information about their environmental quality in a cost-effective and efficient manner.
  • Provide a more efficient approach to regulating by reducing overlap and contradictions between various jurisdictional requirements

The plan can be accessed through the following links: White House web page on regulation reform, (click on the "Environmental Protection Agency" link), or click Document #EPA-HQ-OA-2011-0156-0119 . Through 06/27/2011, you can submit your ideas about EPA's plan by filling out and submitting the comment form for Docket #EPA-HQ-OA-2011-0156.

This post was authored by Hamilton Consulting Group's intern Lane Oling, a 2L at the University of Wisconsin Law School.

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Regulatory Reform Bill Sent to the Governor

May 19, 2011

 

Special Session AB 8/SB 8 makes a number of important changes to the agency rulemaking process. In general, the new law makes the Governor and the Legislature more accountable for the adoption of new regulations and forces agencies to be more transparent about how proposed rules impact regulated businesses.

The bill reinforces that the Legislature, not state agencies, sets state policy, by:

  • Providing that an agency may not implement or enforce any standard, requirement, or threshold as a term or condition of a license (permit) unless expressly required or permitted by statute or rule;
  • Providing that broad grants of authority to an agency do not authorize rulemaking beyond that which is expressly conferred by the Legislature, and;
  • Prohibiting an agency from adopting or enforcing a standard, requirement or threshold that is more restrictive than one prescribed by the Legislature. 

In addition, new provisions make the Governor and the Legislature more accountable for review of administrative rules by:

  • Requiring the Governor to actively approve or reject both the scoping statement (which starts the rulemaking process) of a proposed rule and later the proposed rule itself, before it is submitted to the Legislature for review;
  • Requiring that, after the traditional legislative standing committee review, all rules must then be reviewed by the Joint Committee for Review of Administrative Rules (JCRAR) before they can be promulgated, and;
  • Restricting the agency from advancing rules to the Legislature after the last general business floor period is concluded. Under current law an agency may not advance rules after September 1st of an even numbered year. The floor period schedule is set by Joint Resolution at the beginning of each session, but in the case of the 2011-12 session the provision would mean that no rules may be advanced to the Legislature after March 15, 2012 as opposed to September 1, 2012.

The bill requires agencies to do a more thorough economic impact analysis of proposed rules. For example, the economic impact analysis must contain information on the economic effect of the proposed rule on specific businesses, business sectors, public utility ratepayers, local units of government and the state's economy as a whole.

Specifically, the economic impact analysis must include: 

  • Quantification of the policy problem that the proposed rule is intending to address, including comparisons with the approaches used by the federal government and neighboring states.
  • Detailed quantification of the economic impact of the proposed rule, including the implementation and compliance costs that are reasonably expected to be incurred by or passed along to businesses and individuals that may be affected.
  • The quantifiable benefits of the proposed rule, including an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.
  • Alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.
  • A determination made in consultation with the businesses that may be affected by the proposed rule as to whether the proposed rule would materially adversely affect a sector of the economy, productivity, jobs, or the overall economic competitiveness of the state.

The law also provides that an action for declaratory judgment to challenge the validity of a rule in court can be brought in the county where the challenging party resides or has its principal place of business. Formerly, the validity of a rule could only be challenged in Dane County Circuit Court. In addition, after there has been a declaratory judgment on a rule’s validity, the Legislative Reference Bureau will now be required to insert an annotation in the administrative code.

This post was authored by GLLF's intern, Emily Kelchen, a recent graduate of the University of Wisconsin Law School.

 

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