Bill seeks to have judges, not experts, determine MN's water policies

The federal Clean Water Act requires Minnesota to develop water quality standards to protect Minnesota’s waters from pollution. Standards are technical and require input from the state’s most expert water quality scientists. Under existing law, this is done by scientists employed by the Minnesota Pollution Control Agency, along with outside experts they consult, following Minnesota’s rulemaking procedures. 

House file 702 and Senate file 695 would give powerful interests that oppose water quality standards the ability to force Administrative Law Judges and the Court of Appeals to conduct an independent “do-over” of rulemaking based on their own determinations about which scientific issues and data matter.

These bills 
• ask judges with no subject matter expertise to do the complex work of expert career agency scientists, 
• duplicate the rulemaking process and increase the cost, delay and uncertainty of developing water quality standards, and 
• significantly undermine public input into rulemaking and agency transparency to the public. 

Water quality standards must be based on expert science and public input. We need to reject rulemaking by judges and oppose this legislation.   

Our current process

The Clean Water Act requires states to develop water quality standards to protect rivers, lakes, and streams. The standards must reflect what the science shows is necessary to protect uses like swimming and fishing. Before a standard goes into effect, EPA must review and approve the underlying science. Any changes to the standard must be reviewed and approved by EPA. 

 Rulemaking for water quality standards must comply with the requirements of the Administrative Procedure Act, directing the agency to: 
• consider economic costs, including whether less expensive alternatives are available; 
• demonstrate that the standard is needed and reasonable; 
• collect and evaluate the supporting data, including evaluation by outside scientists; 
• consider input and opposing viewpoints from the public including cities, industry, other regulated parties, and outside scientists; 
• consider recommendations of an Administrative Law Judge (ALJ) who reviews the proposed standard. 

 Agency decisions to issue permits, variances, administrative orders, limits, impaired water designations, and restoration and protection strategies are all currently reviewable in court. To ensure that MPCA’s actions are consistent with the will and intent of the legislature, the procedures act also requires that reviewing ALJs and courts invalidate any agency decisions that: 
• violate the constitution; 
• exceed the authority of the agency; 
• are made in violation of procedures and standards set by the legislature; 
• aren’t supported by substantial evidence; or 
• are arbitrary or capricious. 

New bills' costly requirements

Increase the costs and delay of rulemaking by agencies to produce data and records beyond what’s required by the legislature. They: 
• Require an expensive and unnecessary “do-over” of rulemaking whenever a regulated entity challenges one of MPCA’s decisions
• Allow judges to engage in “rulemaking from the bench” by giving them authority to independently decide what scientific issues and data are needed to uphold or invalidate a rule
• Require judges with no subject matter expertise to engage in highly technical scientific analysis
• Reduce public input and agency transparency in rule- and decision-making; and 
• Reduce the MPCA’s accountability to the legislature and the public.

Friends of the Mississippi River 
Leili Fatehi 


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