Stealth House-only bill undermines agency rulemaking

There is a bill that is poised to pass through the Minnesota House of Representatives with minimal hearings that makes it possible for a single legislative committee to block and hamstring the ability of any state agency to adopt or even to propose rules for protecting our environment, natural resources, health, and safety. Written by the Minnesota Chamber of Commerce, the bill explicitly elevates the interests of corporate polluters and other regulated entities above all other regulatory considerations.

HF 1433: (Kresha)

Bill Description

Authored by Rep. Ron Kresha (R, Little Falls) at the behest of the Minnesota Chamber of Commerce, HF 1433 imposes massive, time-consuming, and expensive hurdles that all state agencies must go through to not only adopt a rule, but even to propose a rule. The bill further makes it so that, even after clearing these hurdles, a rule cannot take effect until it is enacted by the legislature.

While its proponents claim that HF 1433 reigns in excessive costs and delays associated with rulemaking, the bill actually does the opposite—it substantially expands the size, length, scope, and costs of rulemaking. The bill imposes a long and varied list fundamental changes to the administrative process, but there are some overall themes to its harmful impacts:

  • The bill amends the language of the state’s regulatory policy statement to make “maximum flexibility for the regulated party” the sole, absolute condition and goal for agency rulemaking and regulations.
  • The bill gives individual legislative committees unchecked authority to block agencies from adopting or even holding public hearings for proposed rules. Rather than requiring the legislature to justify such a block, the bill makes it an agency’s burden to prove that a block is unjustified.
  • The bill imposes requirements that the economic impacts of proposed rules to be assessed and also mandates that that calculation include a lengthy list of increasingly remote and unrelated costs but exclude even the most direct economic benefits that the proposed rule may produce which, in the environmental context, could include clean-up and remediation savings, more valuable environmental services, increased property values, growth in tourism and outdoor recreation, and more.
  • The bill uses these skewed economic impacts to trigger requirements for additional reviews and approvals that delay and add millions of dollars of expense to the rulemaking process. If the agency’s determination of cost isn’t high enough to trigger these additional requirements, the bill creates mechanisms that guarantee the legislature can trigger them anyway.
  • These inevitably triggered requirements include review by a 5 person “peer review” panel to determine the soundness of a proposed rule’s scientific, technical, and economic basis. There are no qualifications or expertise required for being appointed to such a panel other than a one-sided exclusion of those with an indirect knowledge of the agency’s work.
  • Finally, the bill provides that a proposed rule requiring such a panel can’t take effect anyway until it’s approved and enacted as law by the legislature.

It’s critical to note that HF 1433 does not have a Senate companion. The bill is currently laid over in the House Government Operations committee for possible inclusion in a rules omnibus bill. We see this as a strategic move by the bill’s proponents to circumvent the many public hearings this bill would otherwise receive and, instead, move it quickly and quietly to the House floor and then into a conference committee. HF 1433 also doesn’t have a fiscal note, despite the clear and evident expense associated with massive changes and additional requirements it imposes.

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