Bill seeks to strip MPCA and DNR rulemaking authority and sunset all existing rules

by Leili Fatehi

House file: HF 551
Senate file: No senate companion


Several Minnesota state representatives are advancing a bill to eliminate rulemaking authority for Minnesota’s chief environmental agencies. The bill seeks to strip the Minnesota Pollution Control Agency (MPCA) and Department of Natural Resources (DNR) of the ability to create new rules as well as sunsets or retires current environmental regulations pending legislative review and intervention. 

Currently, when legislators create laws they are essentially issuing a mandate. For complex matters, they direct and authorize state agencies to create the detailed rules and regulations to implement the law. In Minnesota, rulemaking is a well-established and transparent process, incorporating public, judicial and gubernatorial review.

This reckless bill seeks to take regulatory decision-making authority over matters of public health and safety from the hands of experts and place it in the hands of elected officials, who would also be empowered to make such decisions without built-in public or judicial review. 

No new rules

House File 551 (Green, Poston, Whelan, Erickson) wholly eliminates rulemaking authority for the Minnesota Pollution Control Agency (MPCA) and Minnesota Department of Natural Resources (DNR).

Should the bill pass, each state agency would be barred from adopting new rules, amending existing rules or even repealing out-of-date rules in the future.

Existing rules repealed without intervention

In addition to stripping environmental agencies of future rulemaking authority, the bill calls for all existing rules to be automatically repealed in 2022 unless the legislature intervenes.

The environment and natural resources committees of each legislative chamber would be required to review each agency's existing rules and recommend to the full legislature whether part or all of any rule should be enacted. Here's how it would play out from there:
• If a rule is reviewed but not recommended for enactment: automatic repeal.
• If a rule is recommended but not actually enacted by the legislature: automatic repeal.
• Any rules the legislature hasn’t gotten to by July 2022: automatic repeal.

What's at risk? Or, rather: What's not?

It's difficult to think of an aspect of Minnesota's air, land or water that would not be impacted by this bill. A table of the specific rules threatened by this legislation is available here.

Some include hard-won rules such as the Mississippi River Critical Area rules recently adopted by the DNR. H.F 551 also places the legislature in control of minutia better left to state agencies. Under this bill, the legislature would spend its time deciding such details as the conditions under which people should be allowed to picnic in a state park and the size limits for using leopard frogs as bait.

Support for HF 551

Proponents of H.F. 551 justify it on the grounds that we need to reign in excessively burdensome, complicated and expensive regulations and create legislative oversight or review of “runaway” agency rulemaking.

While rules can seem complicated, this argument is deeply flawed for three reasons:
• The agency rulemaking process is already wholly defined by and under the control of the legislature in terms of subject, scope, process, requirements and review standards. 
• Minnesota’s Administrative Procedures Act makes the state’s rulemaking process a highly transparent and publically accessible process. The same cannot always be said for legislative decision-making.
• Agency rulemaking is precisely what allows the legislature to take action without being mired in minutia. It spares a part-time legislature from having to pass a law on, say, the technical standards for the detection of leaks in aboveground storage tanks. 

Agencies derive their authority from statutes enacted by the legislature. Typically, legislatures choose to authorize agencies to make decisions in areas that are complex and require substantial subject matter expertise, such as is needed for pollution or natural resources regulations and standards.

Often, the legislature has given agencies the burden of basing their regulatory decisions on sound science or some other objective criteria to ensure that they are truly necessary and effective. In addition, agencies must produce a cost-benefit analysis to justify any economic burdens imposed by new standards and regulations.

All of this is underpinned by additional statutory mandates through the state Administrative Procedures Act which requires that the public is given notice and opportunity to comment on proposed agency rules — and that agencies give those comments due consideration — prior to their enactment.  

An end-run around the public rulemaking process?

By allowing the legislature to review and recommend just some portions of existing rules moving forward, this bill essentially moves the state’s rulemaking authority from the sunlight of the public process to the legislature, known to sometimes operate behind closed doors.

The bill takes regulatory decision-making authority over matters of public health and safety from the hands of experts and places it in the hands of elected officials subject to considerable politicainfluences.

Next steps

FMR and our partners are committed to maintaining the integrity of Minnesota’s rulemaking process, and to protecting the hard-won authority of our state’s environmental agencies. We’ll keep you updated as this bill moves through the legislative process.

For updates, see FMR's main legislative page.

To receive related email action alerts, become a River Protector!

 

Table of Rules Scheduled for Review Under H.F. 551

MPCA

DNR


7000

PROCEDURAL RULES


6100

OUTDOOR RECREATION

7001

PERMITS AND CERTIFICATIONS

6102

RECREATIONAL VEHICLES

7002

PERMIT FEES

6105

WILD, SCENIC, AND RECREATIONAL RIVERS

7005

DEFINITIONS AND ABBREVIATIONS

6106

MISSISSIPPI RIVER CORRIDOR CRITICAL AREA

7007

PERMITS AND OFFSETS

6110

WATER SAFETY; WATER SURFACE USE

7008

EXEMPT AIR EMISSIONS

6115

PUBLIC WATER RESOURCES

7009

AMBIENT AIR QUALITY STANDARDS

6116

WATER AERATION SYSTEMS

7010

NOISE POLLUTION CONTROL

6120

SHORELAND AND FLOODPLAIN MANAGEMENT

7011

STANDARDS FOR STATIONARY SOURCES

6122

LAKESHORE LEASE APPRAISALS

7017

MONITORING AND TESTING REQUIREMENTS

6125

MINERAL RESOURCES

7019

EMISSION INVENTORY REQUIREMENTS

6130

FERROUS METALLIC MINERAL MINING

7020

ANIMAL FEEDLOTS

6131

PEAT MINING

7021

ACID DEPOSITION CONTROL

6132

NONFERROUS METALLIC MINERAL MINING

7023

MOBILE AND INDIRECT SOURCES

6133

RESTITUTION VALUE FOR FISH AND WILDLIFE

7025

LEAD PAINT REMOVAL

6134

ENDANGERED, THREATENED, SPECIAL CONCERN SPECIES

7027

STRATOSPHERIC OZONE PROTECTION

6135

UTILITY CROSSINGS

7028

OPEN BURNING PERMITS AND RESTRICTIONS

6136

NATURAL PRESERVATION

7030

NOISE POLLUTION CONTROL

6140

BOUNDARY WATERS CANOE AREA

7035

SOLID WASTE

6200

GAME AND FISH GENERAL PROVISIONS

7037

PETROLEUM CONTAMINATED SOIL MANAGEMENT

6210

WILDLIFE MANAGEMENT; CRITICAL HABITAT; STROMATOLITES

7039

LISTED METALS IN SPECIFIED PRODUCTS

6212

LICENSES AND PERMITS

7040

SEWAGE SLUDGE MANAGEMENT

6213

ELECTRONIC LICENSING

7041

SEWAGE SLUDGE MANAGEMENT

6214

TRANSFER OF WILD ANIMALS BY GIFT

7042

LOW LEVEL RADIOACTIVE WASTE

6216

INVASIVE SPECIES

7044

PRIORITY ASSESSMENT CRITERIA

6218

PUBLIC WATER ACCESS

7045

HAZARDOUS WASTE

6230

WILDLIFE MANAGEMENT

7046

FACILITY AND GENERATOR FEES

6232

BIG GAME

7047

HAZARDOUS WASTE ACCEPTANCE; S/C FACILITY

6234

SMALL GAME

7048

WASTE DISPOSAL: OPERATORS, INSPECTORS

6236

TURKEY HUNTING

7049

WASTEWATER PRETREATMENT

6237

PRAIRIE CHICKENS

7050

WATERS OF THE STATE

6238

FALCONRY

7052

LAKE SUPERIOR BASIN WATER STANDARDS

6240

MIGRATORY BIRDS

7053

STATE WATERS DISCHARGE RESTRICTIONS

6242

SHOOTING PRESERVES AND GAME FARMS

7055

INTERSTATE WATERS

6244

CAPTIVE WILDLIFE

7056

MISSISSIPPI RIVER AND TRIBUTARIES

6250

PRIVATE FISH HATCHERIES

7060

UNDERGROUND WATERS

6252

FISHING METHODS

7065

EFFLUENT STANDARDS FOR DISPOSAL SYSTEMS

6254

MINNOWS

7070

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

6256

FROGS AND TURTLES

7075

STATE FUND AND FEDERAL GRANTS

6258

MUSSELS

7076

CLEAN WATER PARTNERSHIP FINANCIAL ASSISTANCE

6259

CRAYFISH

7077

WASTEWATER AND STORM WATER TREATMENT ASSISTANCE

6260

COMMERCIAL FISHING OPERATIONS

7080

INDIVIDUAL SUBSURFACE SEWAGE TREATMENT SYSTEMS

6262

FISHING REGULATIONS AND REQUIREMENTS

7081

MIDSIZED SUBSURFACE SEWAGE TREATMENT SYSTEMS

6264

DESIGNATED WATERS

7082

LOCAL ISTS PROGRAMS

6266

BOUNDARY WATERS FISHING REGULATIONS

7083

SSTS CREDENTIALING AND PRODUCT REGISTRATION

6268

EXPERIMENTAL WATERS; PUBLIC INVOLVEMENT

7090

STORM WATER REGULATORY PROGRAM

6270

AQUATIC MANAGEMENT AREAS

Solid Waste Processing Facility Capital Assistance Program

6280

AQUATIC PLANTS AND NUISANCES

9210.0100

DEFINITIONS.

6282

GINSENG

9210.0110

SOLID WASTE PROCESSING FACILITIES CAPITAL ASSISTANCE PROGRAM.

6284

WILD RICE

9210.0120

GRANT APPLICATION PROCEDURES.

6287

QUARANTINE FACILITIES FOR FISH EGGS

9210.0130

ELIGIBILITY CRITERIA.

6290

FISH AND WILDLIFE STAMP DESIGN CONTESTS

9210.0131

PRELIMINARY GRANT APPLICATION.

 

 

9210.0132

INVITATION TO SUBMIT FINAL GRANT APPLICATION.

 

 

9210.0140

FINAL GRANT APPLICATION.

 

 

9210.0150

SUPPORTING DOCUMENTATION REQUIRED TO BE SUBMITTED WITH FINAL GRANT APPLICATION.

 

 

9210.0160

REVIEW AND EVALUATION OF FINAL GRANT APPLICATIONS.

 

 

9210.0170

LIMITATIONS.

 

 

9210.0180

GRANT AGREEMENT.

 

 

Environmental Testing Grants, Assistance Grants, and Loan Program

 

 

9210.0190

DEFINITIONS.

 

 

9210.0200

ENVIRONMENTAL TESTING GRANTS.

 

 

9210.0800

SCOPE AND APPLICABILITY.

 

 

9210.0805

DEFINITIONS.

 

 

9210.0810

REQUEST FOR PROPOSALS.

 

 

9210.0815

ELIGIBILITY CRITERIA.

 

 

9210.0820

PRELIMINARY GRANT AND LOAN APPLICATION PROCEDURES.

 

 

9210.0825

FINAL GRANT AND LOAN APPLICATION PROCEDURES.

 

 

9210.0830

LIMITATIONS.

 

 

9210.0835

FEDERAL MATCH GRANTS.

 

 

9210.0840

TIME-SENSITIVE GRANTS.

 

 

9210.0845

GRANT AGREEMENT.

 

 

9210.0850

LOAN AGREEMENT.

 

 

9210.0855

PARTICIPATION AGREEMENT.