Flexing muscles while giving up the reins
The REINS Act creates a conundrum inside the Kentucky Capitol: By asserting its power the legislature could cost Kentucky its power to run regulatory programs. (Kentucky Lantern photo by Sarah Ladd)
It's said that a foolish consistency is the hobgoblin of a small mind. Yet one must wonder why, in the same breath as claiming to be the most powerful of the three coequal branches of state government, supporters of two bills pending in the General Assembly would want to give that power over numerous state regulatory programs to the federal government?
That is the conundrum of House Bill 6 and its counterpart Senate Bill 20, both pending in the Kentucky Senate.
Kentucky's General Assembly has determined, over many years and with many votes, that Kentucky should manage regulatory programs under various federal laws — including laws regulating air pollution, water pollution, waste management, occupational safety and health, drinking water, underground injection associated with oil and gas production, among numerous others.
No one requires Kentucky to run these programs. If Kentucky decided tomorrow to no longer do so, a federal program would be implemented in place of Kentucky's. With longer wait time for permits. With higher permit fees. With federal agency and federal court enforcement.
It was the General Assembly that directed the executive branch agencies to apply for delegated authority from the federal government to allow Kentucky agencies to operate the programs, to issue the permits and to conduct the inspections. With that authority comes a binding obligation, voluntarily accepted, to maintain the programs in a manner that meets the requirements of the federal law and is timely updated to reflect changes in federal regulations.
The federal program standards are national minimum standards, intended to establish a national floor of worker public, and environmental protection, against the one-downmanship and economic protectionism that prevailed among the states and too often prevented states from adopting adequate protections. (Regrettably, Kentucky has in many cases converted those floor standards of protection into our ceiling, but that is an issue for another day).
Regulations impose standards of conduct and responsible behavior, such as limiting pollution of the public's air, land and water and protecting workers in the workplace from hazards. As such, regulations have costs — costs for compliance, costs for pollution control, costs for worker protection — that are internalized through regulation and passed through to consumers, rather than being paid for downwind, downstream and downhill, in morbidity, mortality and loss of quality of life. Not controlling those harms and impacts also has a cost, yet all too often, the focus in 'cost-benefit' analyses overemphasizes compliance costs while minimizing benefits to both the regulated and the public. Or ignores those offsetting benefits completely.
So it is with HB 6 and SB 20, which would decree that unless it falls within one of six enumerated exceptions, no state agency has the authority to file any regulation that would impose compliance costs of more than $500,000 over a two-year period. No consideration is provided in the bill to offsetting benefits, such as avoided costs to workers and public health, safety and the environment. And no exception is provided to allow state agencies to adopt regulations needed to allow continued state management and control of delegated federal programs.
One reported explanation from the House floor debate was that it 'is about a reset to make sure and remove all doubt that the most powerful branch of government is the branch that has the most elected people in it — that power that this country was founded on is spread across 138 individuals. We should … never allow unelected bureaucrats to set the policies that affect the everyday lives of Kentucky citizens.'
Called the 'REINS Act' for 'Regulations from the Executive in Need of Scrutiny,' the bill might better be called the 'Giving Up The Reins Act' since the outcome of the bill if enacted will be that all of the delegated federal programs will be subject to challenge, de-delegation, and replacement by federally-run programs.
You read that right. The muscle-flexing will likely result in de-delegation of the federal programs that the General Assembly directed those 'unelected bureaucrats' in the state agencies to apply for, receive, and implement in the first place. And in the meantime, as noted by the secretary of the Energy and Environment Cabinet that implements many of these delegated programs, the bills would hamper the cabinet's ability to effectively protect Kentucky and Kentuckians from environmental harms.
Each of the federal program delegations requires certification from the states that they have the legal authority to maintain, administer, implement, and enforce the federal law and regulations. A state agency that no longer has the power to timely adopt state counterpart regulations as federal regulations change, can no longer demonstrate that authority.
And any notion that the economic impacts of these regulations have not been thoroughly considered is misplaced. Each of the federal regulations adopted by Kentucky agencies as part of these delegated programs, which represent most of all state regulations, have been thoroughly vetted and subject to significant scrutiny for costs and benefits at the federal level, and are again subject to such analyses and legislative review as part of the state administrative regulation process. Blanket prohibitions on adoption of regulations based solely on the projected compliance costs, and ignoring the offsetting health and safety benefits of regulation, such as HB 6 and SB 20 propose, add nothing of substance to the process.
The General Assembly cannot have it both ways. If it believes that state agencies should continue to manage these federal programs that are intended to protect workers and the public and to create a healthy and livable environment in which Kentuckians can live, work and do business, then it should shelve HB 6 and SB 20.
If it would rather assert its 'power' by preventing Kentucky's agencies from adopting regulations needed to maintain the regulatory programs it directed them to adopt and manage, it should be ready to give up the 'reins' on these programs, with all of the economic disruption, delays, environmental damage and loss of control that will follow.
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