Legalectric

Many thanks to the “little birdie” who brought this decades old report to my attention:

Rulemaking – Legislative Auditor-93-04-1

Yes, this is a report from the Minnesota Legislative Auditor from 1993, and if you read it, you’ll see little has changed is so many years…  The issues raised are issues we’ve been raising in the Public Utilities Commission rulemaking for Minn. R. Ch. 7849 and 7850 (Certificate of Need and Siting/Routing).  AAAAAAAAAAAACK!

For example, from the Summary:

• Encouraging agencies to negotiate rules before formally proposing them has made the formal public notice-and-comment process mandated by the APA less meaningful; and

• Since there are no requirements or guidelines governing the negotiation process, those people selected to help an agency draft rules have an unfair advantage over those who are not asked to participate.

One unintended consequence of negotiated rulemaking is that the public participation process mandated by the APA has become less important because the content of rules is largely decided during the negotiation phase. As a result, by the time a rule is formally published in the State Register with a request for public comments, an informal agreement between an agency and parties to the negotiation may already have been reached. Those groups and individuals not consulted often are left out. Nearly 70 percent of the affected parties who responded to our survey said they hear about rules too late for their input to make a difference. People who live outside the Twin Cities area were much more likely to feel unable to influence the rulemaking process and to express dissatisfaction with agency rulemaking performance generally.

For example, in the PUC Rulemaking for 7849 and 7850 (PUC Docket 12-1246), it’s been an over two-year-long process, and few are showing up anymore.  We weigh in, some things are taken into account in the drafts, and then that disappears from the next draft.  How can it feel like anything but a colossal waste of time?  Yet if we weren’t there, the utilities would get everything they want.  And as with the utility Certificate of Need and Siting/Routing processes, rulemaking has the same notice and public participation problems.  It’s all the same, deja vu all over again.

… and also from the report …

Furthermore, the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources. In the absence of formal guidelines or standards, agency practices vary, and some agencies are better than others at obtaining broad-based input.

We also conclude that:

• The formal public notice mechanisms may be inadequate to ensure timely notice and meaningful participation in rulemaking; and

• The prohibition of “substantial changes” after rules are proposed is often misunderstood by agency staff and may inhibit them from incorporating public comments made through official mechanisms.

Does this sound familiar?

Once more with feeling:  … the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources.

So what is the bottom line of this report?

Therefore, we recommend that:

The Legislature should consider amending the Administrative Procedure Act to require that a “notice of regulatory action” be published in the State Register and mailed to all affected parties when an agency begins drafting a rule.

We also recommend that:

• The Legislature should consider amending the Administrative Procedure Act to require that agencies maintain a “rulemaking docket” that contains an up-to-date listing of the status of existing rules and impending rulemaking actions, to be submitted annually to the Legislature.

The recommendations we make are designed to revitalize the formal rulemaking process, ensure more equitable access to agencies at a time when comments can reasonably be considered, and strengthen public accountability over agency rules. We think that replacing the current “notice to solicit outside opinion,” which is published for 62 percent of all rules, with a mandatory “notice of regulatory action” will not represent an undue burden on agencies. The current notice is not widely distributed and does not contain enough information to enable interested parties to respond. Therefore, we recommend that the new notice should contain more information about the rule and the process to be used in drafting it, and that it should receive wider distribution than the current notice. A mandatory rulemaking docket, to be submitted to the Legislature and made available to the public upon request, should help the Legislature monitor rulemaking and provide better oversight.

Also, we recommend the following additional changes to the Administrative Procedure Act:

• Rules not adopted within 18 months of their authorizing legislation should require reauthorization, which would replace the current requirement that new rules be published within 180 days;

• A single definition of “substantial change” should be incorporated into the APA;

• “Regulatory analyses” should be done on rules if requested by the Governor, the Legislative Commission to Review Administrative Rules, a political subdivision, another state agency, or 300 persons; and the current special rule justification requirements relating to agricultural land, small business, and fiscal impacts on local government should be eliminated;

• Agency efforts to notify all people potentially affected by a rule should be made part of the official rulemaking record and subject to external examination during the rules review process;

• Individuals requesting a public hearing should provide their address and phone number;

• Everyone who has requested a hearing should be notified when agencies negotiate to secure withdrawal of hearing requests, and agreements made in negotiations should be made a matter of public record and included in the official rulemaking record;

• Exempt rules should be reviewed for form, statutory authority, need and reasonableness, and consistency with legislative intent; and

• All rules should be reviewed by the Office of Administrative Hearings, thereby eliminating the Attorney General’s role in rules review.

… and …

In addition to changing the APA and other statutes that govern agency rulemaking, we recommend that:

• State agencies involved in rulemaking should make more efforts to broaden public participation in rulemaking.

For example, they should make a greater effort to educate the public about how to receive direct information about rulemaking actions and make greater use of agency-held public hearings or widely publicized public meetings early in the rulemaking process. They should also include circulation of rule drafts and “statements of need and reasonableness” earlier and more widely among all parties affected by rules. Finally, agencies should terminate the negotiation process when it fails to make progress toward resolving issues and either proceed more quickly to an official public hearing, employ the services of a professional negotiator or mediator, or return to the Legislature for guidance.

Adopting these recommendations should shorten the informal process, broaden public input in the early stages of rulemaking, and make rules more responsive to the Legislature.

It’s that time again — the Silica Sand Advisory Committee is meeting again on Thursday, from 10 a.m. to 3:30 p.m. at the People’s Energy Cooperative in Oronoco, Minn.

Here’s the Agenda:

Agenda

Dig this:

In my experience, the search/stretch for consensus is the first step in unreasonable compromise.  It takes a push to change things, and it’s important not to give up too soon.

As you know, I’ve been frustrated at the way these meetings are handled, in that they’re NOT doing what a rulemaking advisory committee is supposed to do, which is review and comment on draft rules.  And we’re not getting representation on this committee, there are no regular updates from members that I’m aware of, unless I ask on a list, so we’re not getting any opportunity for input or feedback from the representatives.  Plus there’s Charlie Peterson…

I was listening to the July meeting, and for introductions, there were only six members of the committee present:

Tara Wetzel – MN Aggregate Ready Mix Assoc.

Beth Procter – Lime Twp., Blue Earth County

Al Frechette – Scott County

Doug Losee – Unimin

Tom Rowekamp – IT Sand

Kelly Stanage – Citizen Rep. from Houston County

I’ve heard from Amy Nelson that she, Keith, and Vincent Ready were there.  Katie just let me know she was there.  Others?  Were introductions not broadcast?  Did anyone come in later?   Can’t tell, it was audio only (unless I’m missing something), and the audio was out for a large part of the presentation.  Where are the alternates?  Where are the alternates?  And if members are determining that it’s a big waste of time and don’t want to show up, well, it seems they ought to let the agencies know so replacements can be found!  And so the meetings can be changed to become more ___________ and less _________ so members can and will attend!

Here’s the bright spot of the day, from what I’ve seen:

Look where they put the “Advisory Panel.” IT’S IN THE RIGHT PLACE!!!  YES!!!  Now, there needs to be another arrow, though, or a expansion of the purple square that says, “Advisory Panel review of draft rules.”  They’re sidestepping by saying that, even the EQB Board, will “review draft rule concepts.”  NOPE, not good enough, eliminate that word “concepts” and let’s start reviewing rules, the Advisory Panel and the EQB.  DRAFT RULES!  It’s that simple.

From the site, here are the future planned meetings:

Upcoming meetings

All of these meetings will be held at the People’s Energy Cooperative (Oronoco, Minn.) and run from 10:00 a.m. to 3:30 p.m.

• WebEx Conference Call 9/5/2014 10-noon

• October 1

• November 3

• December 4

Yesterday was the quarterly meeting of Minnesota’s Mississippi River Parkway Commission.  Attorney Bill Mavity, accompanied by several others from Wisconsin, presented on frac sand mining and impacts on the Great River Road.  He authored and promoted the Pepin County ordinance:

Pepin County Ordinance

He brought up the economic report that they’d completed in association with the Ordinance:

The Potential Impacts of Frac Sand Transport and Mining on Tourism and Property Values in Lake Pepin Communities – 14 May 2013

He noted that the Ordinance is economic regulation, and if challenged, this report essential because it provides the rational basis necessary to support the Ordinance.  This points to the necessity of having an economic analysis for this type of ordinance, without it, or some other substantive support, it is much weaker and susceptible to challenge.

The Minnesota MRPC is sensitive to the impacts of frac sand mining on the Great River Road and the Mississippi, and has agreed to pull together a Resolution similar to that of the Wisconsin MRCP, which they’ll discuss at their November meeting.  They also will be considering a silica sand presentation at the annual convention.

I gave a short update on the completion of permitting for CapX 2020 transmission, what with this week’s Supreme Court denial of Oronoco Township’s Petition for Review.  MRPC submitted comments for a number of the CapX 2020 dockets — CapX 2020 transmission will have a significant impact on the Great River Road.  Any day now they’ll start the 345kV part of the Hampton-La Crosse route which crosses the Mississippi River at Alma.  Staff also got the scoop from me about agencies’ silica sand mining agenda including Standards and Criteria (which includes bluff and road impacts).

This was a very effective presentation by Mavity.  It’s unfortunate that no one else from frac sand mining land showed up!