The Minnesota Legislature is muscling in on the power of state agencies in a broad effort to assume more influence over everything from water quality to health and safety regulations.
A coalition of Republicans and DFLers from the Iron Range and rural districts say regulators are socking businesses and cities with burdensome, expensive rules in their effort to keep Minnesota water clean of sulfates, phosphorus and other contaminants.
In a recent hearing, Rep. Tony Cornish, R-Vernon Center, told members of the Minnesota Pollution Control Agency, “You wouldn’t even exist if it wasn’t for the Legislature. … We gave you rulemaking authority, of which many of us regret. And the reason we’re here today and we have some of these bills is because of this arrogance.”
The proposed bills would create numerous hurdles, including a cost-benefit analysis and outside peer review, for any new rule that has a “substantial economic impact.” One bill would require a state census of contaminated waters where wild rice is grown before implementing a sulfate standard.
Opponents say the bills would allow recalcitrant cities and businesses to get around rules meant to protect clean water, wildlife habitat, wild rice and human health.
‘That ain’t right’
Rep. John Persell, DFL-Bemidji, said his city cleaned up its phosphorus problem 30 years ago. “Now a few cities want to say, ‘No, not me. We don’t want to do this.’ Well, bull hockey! That ain’t right. That ain’t fair. That ain’t the way we do things in Minnesota.”
The debate is part of a larger, ongoing philosophical argument about the role of government in regulating health, safety and the environment and about the role of science in public policy issues.
Republicans say their preference for a lighter regulatory touch was vindicated by last year’s election, while Democrats say that victory was brought about by very deep-pocketed interest groups, including agribusiness and mining, that now are pushing for the legislation.
“The pollution in the system is the money,” said Rep. Rick Hansen, of South St. Paul, in a recent hearing. He’s the lead Democrat on the House Environment and Natural Resources Policy and Finance Committee.
The bills could trigger a sharp response from both the federal Environmental Protection Agency, which oversees much of Minnesota’s clean water efforts, and Gov. Mark Dayton
Dayton, who vetoed a bill that would have given the Legislature a bigger role in regulatory issues in 2012, said the new proposals would “interfere with the clearly established responsibilities of the executive branch.”
A needed balance
Regardless, legislators are pressing ahead. Sen. Kent Eken, DFL-Twin Valley, said, “We don’t want to be imposing regulations that are going to break the backs of some of our smaller communities or businesses. I believe we can achieve the goal of clean water and still have a strong economy at the same time.”
Hansen called this year’s attempt by legislators to intervene in the regulatory process an “all-out assault,” though the effort is by no means new.
Previous efforts have resulted in the threat of sanctions from the EPA. The state enforces the Clean Water Act and other federal environmental laws at the behest of the EPA. If it fails to do so, the EPA can intervene. The federal agency warned the state in 2011 that rewriting the state statute that protects wild rice without a scientific basis, or failing to adopt it in permits, would trigger a response.
“The state may not issue a permit over the EPA’s objection,” federal officials wrote in a 2011 letter to Iron Range legislators Sen. Tom Bakk, DFL-Cook, and Rep. David Dill, DFL-Crane Lake. “The EPA has the authority to require the state to take corrective action,” the letter read. Both Bakk and Dill are part of the group supporting changes in the regulatory process.
The EPA has intervened in other states, including Arkansas, which it says failed to enforce the Clean Water Act and other federal environmental laws.
Cornish rejected this reasoning at a recent hearing, saying the MPCA is “worshiping at the shrine of the EPA, and saying there’s nothing we can do” instead of standing guard against the EPA.
Outstate legislators and the Greater Minnesota Coalition of Cities, whose lobbyist at Flaherty & Hood acknowledged writing some of the proposed legislation, say the costs of complying with phosphorus and other pollution regulations at water treatment plants are dealing a blow to struggling communities.
Opponents say the state can — and does — provide funding to help cities. That, they say, is a better solution than throwing sand into the gears of the regulatory process.
MPCA officials say the various proposals would grind the regulatory process in some cases to a near stop because of the need for new cost-benefit analyses, peer-reviewed scientific assessments and legislative approval. Dayton’s office estimates the measures could add three to six months to the current 18-24 months for rulemaking, contradicting demands from the Legislature and Dayton to speed up permitting and rulemaking.
A fiscal analysis by Minnesota Management & Budget of just one of the bills estimated the cost of implementation at $7.4 million during the biennium.
Hansen said requiring legislative approval would politicize regulations: “We don’t respond to science,” he said of the Legislature. “We respond to special interests.”
Tony Kwilas, a lobbyist on environmental issues for the Minnesota Chamber of Commerce, said the major changes, including legislative approval, would kick in only if there was substantial economic impact — $50 million for a set of permit applicants or $5 million for a single applicant.
Kwilas said legislative oversight would let lawmakers “double-check the homework” of regulators.
Rep. Denny McNamara, R-Hastings, chairman of the House environmental policy committee, said in a recent hearing that the proposed legislation will pass the GOP-controlled House and that the MPCA should get ready to compromise.
Prepared to veto
Dayton, however, views the proposals as illegitimate usurpations of executive authority.
So a veto fight may be coming, again.
In his 2012 veto letter Dayton quoted his GOP predecessor, Gov. Tim Pawlenty, who vetoed a similar reach into executive powers in 2003.
It would have shifted “authority for conducting rulemaking from the executive branch to the legislative branch,” Pawlenty wrote, adding, “Under current law, the Legislature has granted the Governor’s office final approval authority on all rulemakings. This is sound policy as it provides accountability in a way that does not paralyze either branch of government.”