Here’s a Great Idea–Let’s Shoot Ourselves in Both Feet!

Friday saw the introduction of H.B. 2269, whose purpose “is to require rules of the Department of Environmental Protection, Department of Health and Human Resources, Division of Natural Resources and Department of Commerce be no more stringent than corresponding federal law or regulations.”

Now, most of you who are reading this newsletter probably understand the relationship between “statutes” and “rules,” but here’s a thumbnail explanation.  Legislative bodies pass statutes that provide broad authority for government actions.  They also specify which government agency (such as the DEP, DHHR, etc.) is to enforce the action, and if necessary they could create a new agency.  The agency then develops “rules” that spell out specifically how the law is to be enforced.  Those “rules” must then in turn be approved by the legislative body, and West Virginia is one of a very few states in which the Legislature actually has the option of changing the rules as they move through the legislative process.  (Generally, btw, this is bad, because it subjects the rulemaking process to influence from “special interests,” e.g.  industries who consider themselves to be negatively impacted by a proposed rule.)  In most states, and in the U.S. Congress, the legislative body is allowed only to vote the rules up or down.

No doubt the main purpose of this bill is to demonstrate that its sponsors– Delegates Walters, R. Phillips, Storch, Ihle and Foster–are opposed to nasty ol’ regulation.  They appear to have forgotten that legislators like them are the ones who have not only the authority to approve or disapprove rules, but also the authority to change them!  They are taking away their own flexibility in the rulemaking process!  And who’s to say that one person’s “more stringent” isn’t another person’s “less stringent,” which could lead to the unintended consequence of a rule’s being designated unlawful.

Let’s hope that a sufficient number of legislators are wise enough to see the folly in this bill and that this train never leaves the station .  .  .