So many rules, so little time

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The charge that there are too many burdensome laws on the books in Minnesota is one that most legislators are familiar with — whether they agree with it or not. It’s at the core of the debate over the proper size and role of government.

But this year, it’s the proliferation of a different type of government power that’s in the crosshairs: the rules created by state agencies.

Sponsored by Rep. Doug Wardlow (R-Eagan), HF1831 is designed to undo what its sponsor calls “the soft tyranny of unelected technocrats.” It would require “major rules” from state agencies to come under legislative review before they take effect, and once every two years thereafter.

The House Government Operations and Elections Committee approved the bill Jan. 31.

Wardlow said the number of state rules has multiplied over the course of several decades, stifling private enterprise and expanding the reach of government without sufficient legislative oversight. He said bureaucrats routinely make regulatory decisions that serve to hinder private-sector growth.

“So what happens when you have this multiplication of rules and delegation of legislative authority to unelected civil servants? It undermines the rule of law and undermines representative democracy,” Wardlow said.

Under the provisions, “major rules” would be defined as those with an economic impact of greater than $2 million per year, or which significantly affect the state’s private sector.

“This bill does not automatically delete or nullify any rule,” Wardlow said. Instead, he explained that agencies will simply be required to classify their rules; those falling into the “major rule” category will have to be reviewed by lawmakers.

Supporters include Rep. Mike Beard (R-Shakopee), who said there is an “avalanche of rulemaking” that legislators often aren’t even aware of until after the fact.

“Is it a good thing that somehow elected officials have some kind of a review and consent process? I think it is,” Beard said.

Rep. Dean Urdahl (R-Grove City) said he’s frequently confronted by constituents who are angry about something they think is a new state law, but which is, in fact, a rule developed by a state agency.

“I think it’s important to have a better understanding and review of the rulemaking process,” Urdahl said. “Rules have the impact of law, and they are often made by unelected people.”

Opponents say the bill amounts to a legislative power grab, and argue that asking lawmakers to review potentially hundreds of chapters of rules every two years would be logistically impossible.

Rep. Bev Scalze (DFL-Little Canada) said the Legislature delegates rulemaking authority to agencies for a reason. She said state legislators lack the technical and scientific knowledge to make specific decision on how to execute policy.

Officials from various state agencies seem to agree.

“This is a wholesale upending of how our rulemaking and our execution of the statutes would be done,” said Michele Beeman, an assistant commissioner at the Pollution Control Agency.

Beeman said the bill would “create chaos” by forcing legislators to decide issues like whether protective liners underneath landfills should be 4 or 5 millimeters thick, and whether 4 parts per billion is an appropriate limit on the level of dioxin in the environment.

“Those are the details that are in our rules that, really, the Legislature shouldn’t be bothered with. You want those engineers and experts to be the ones wrestling with it,” she said.

Rep. Steve Simon (DFL-St. Louis Park) points out that agencies only create rules because the Legislature directs them to do so in statute. If lawmakers don’t like a rule or set of rules developed by an agency, they can repeal it legislatively at any time. He said Wardlow’s presentation of the bill created a false impression of “rogue agencies” making rules arbitrarily.

“I think it’s worth remembering that regulations and rules don’t just spring up like weeds or flowers,” Simon said.

The committee’s vote to approve the measure fell squarely along party lines, 8-6. It now moves to the House Commerce and Regulatory Reform Committee. There is no Senate companion.