Garth Everett (R-Lycoming) introduced House Bill (“HB”) 2416 on April 17. This bill would halt any rulemaking proposals from being finalized until at least 90 days after the Governor’s COVID-19 emergency declaration is terminated. Interestingly, House Republicans also inserted language from HB 2416 into Senate Bill (“SB”) 327. SB 327 is a bill that was originally drafted as a mitigation plan for businesses in response to the COVID-19 pandemic. As a result, there are now two bills that if passed would prevent rulemaking proposals from being reviewed and promulgated as law for at least 90 days after the emergency declaration is terminated. However, for the sake of ease, this blog will be referring only to HB 2416 despite the fact that both SB 327 and HB 2416 contain the same damaging language.
To better understand what exactly HB 2416 does, here is some background as to how a proposed environmental regulation becomes law in Pennsylvania. First, there must be a proposed change to a regulation or new regulation drafted. This proposal is then reviewed by many stakeholder groups, both internal and external to the Department of Environmental Protection (“DEP”), for comments and amendments. Afterwards, the proposal is then voted upon by the Environmental Quality Board (“EQB”). If passed, the proposed regulation is sent to the Office of General Counsel and the Attorney General’s Office for their review and comments. Next, the proposal is made available for public comment and sent to the Independent Regulatory Review Commission (“IRRC”) and the House and Senate Environmental Resources and Energy Committees for review. After this, the DEP responds to the public comments and revises the proposed regulation, if needed. At this step, the revision is now called the draft final regulation, and is then shared with the original stakeholder groups again. The EQB reviews and votes whether to adopt the final regulation. If adopted, the regulation is sent back to the House and Senate Environmental Resources and Energy standing committees and the IRRC for approval. If approved there, it is sent to the Attorney General’s Office for consideration. If the Attorney General’s Office approves the final regulation, it is published in the Pennsylvania Bulletin and becomes law. The law is then enforced by the DEP. In its entirety, from draft to law, this process on average takes two to three years.
Why HB 2416 is troubling is that if passed, it would prevent any proposed regulation in final form from being submitted to the IRRC, House of Representatives, or the Senate for final review and approval before the regulation becomes law. Review by the IRRC is an integral part of this process, as this body reviews agency regulations to ensure that they are in the public’s best interest. This means that once the proposal is drafted and considered by several stakeholder groups, including the IRRC and the Attorney General’s Office, it is only to be halted in its steps. This is to say, no matter how beneficial the proposed regulation is to the public’s health, their property, or the environment, it cannot become law and cannot be enforced for at least 90 days after the emergency declaration is terminated.
This bill would have real consequences on several regulatory safeguards, both in final and proposed rulemaking forms. Some of the final form regulations that would be barred from moving forward under this bill are:
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increased fees for unconventional oil and gas well permits,
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mandatory reduction of sulfur content in heating oil, and
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updates to our hazardous waste regulations.
Additionally, this bill would also affect several proposed regulations such as:
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setting air emissions standards for oil and gas operations (such as volatile organic compounds and methane),
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establishing standards for cleaning up PFOS and PFOA contamination, and
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increased protection for water quality for over 40 streams.
Perhaps the most concerning aspect of this bill is the unforeseeable impact. Since we do not have a clear answer on when the Declaration of Disaster Emergency will come to an end, the full scope of HB 2416’s impact is not clear. If HB 2416 is passed, then all proposed rulemakings could be placed on hold for an indefinite time. That could mean that our elected officials will have intentionally halted all new regulation regardless of whether it was designed to protect our safety, health, or our economy.
HB 2416 does allow state agencies to petition to the Standing Committees of the Senate and House for a waiver of the delay. Unfortunately, the waiver provision is fundamentally flawed. Noticeably absent from HB 2416’s waiver provision is a requirement that the Standing Committees actually consider the petition or take any action on the petition within a certain amount of time. Additionally, HB 2416 is silent as to the process (if any) the Committees should follow when such petitions are presented. For example, it is not clear whether or not there will be any public notice and comment on petitions submitted to the Standing Committees. This means that the DEP could petition specific Committees for a waiver so that a particular regulation (e.g., ensuring safe drinking water or clean air) continues through the regulatory review process and goes to the IRRC. However, under the language of HB 2416, the Standing Committees may decide to completely ignore the petition and there would be no repercussion for doing so.
In conclusion, it appears that some of our elected officials have their priorities backwards: Some of them would rather provide a hand-out to the industry than protect us. Instead of drafting legislation that would ensure clean air and water for us and our families, what has been created is a bill that would prevent any new regulations from even being considered, no matter how beneficial it is for our health or environment. The people of this Commonwealth deserve better than this.
