Profits Before People

Imagine this: the Department of Health is getting ready to release their new regulations to address PFOA, the likely carcinogen that contaminated the water supply in Hoosick Falls. But before it can finalize the new rules, they need to take another one off the books (perhaps one that protects communities from another known carcinogen). Agencies are already struggling to meet the politically inspired goal of “doing more with less,” so diverting attention to repealing regulations as they work to adopt more protective ones is a huge burden and could result in exposing New Yorkers to unsafe and unhealthy conditions.

That very scenario could happen with so-called “regulatory reform” legislation being advanced through the New York State Senate, even as Hoosick Falls and other communities struggle to address polluted drinking water supplies.

One bill (S.6495), sponsored by Robert Ortt (R-North Tonawanda), requires a misguided “one in, one out” policy for new rules. To put it simply: for every new regulation – be it for public safety, health, or the environment – an existing rule would have to be repealed, completely ignoring the protections and benefits that regulations provide.

A second bill (S.6770), sponsored by Senator Terrence Murphy (R-Yorktown), reflects a lack of appreciation for how state agencies maintain their portfolio of regulatory standards. It requires all regulations promulgated before 1997 to be re-proposed, or they will be repealed.

And yet another bill (S.2721), sponsored by Senator David Carlucci (D-New City), would give business interests special treatment in the rulemaking process. After months of providing input at public hearings and submitting written comments, this legislation lets businesses get a second bite at the apple once a rule is finalized by asking an agency to make a special exception, just for them.

These bills reveal a fundamental misunderstanding of law and policy. Rules and regulations, developed in a public and deliberative process, provide government with the mechanisms needed to implement and enforce the laws adopted by our elected representatives. State agencies cannot promulgate regulations unless they are authorized to do so by the Legislature. Very often, statutes direct state agencies to issue rules.

State agencies must follow the procedures set forth in the State Administrative Procedure Act, or SAPA. SAPA requires agencies to go through a rigorous process that provides for public review and opportunities to comment on proposed rules. SAPA also mandates that agencies evaluate how a new regulation will impact jobs and employment opportunities in New York. Agencies must also consider reducing costs on small businesses and local governments, and conduct additional outreach to those stakeholders to solicit their input. Therefore, the public and the regulated community are involved in the rulemaking process from start to finish.

Once regulations are “on the books,” agencies have to review those regulations every five years. Each year, state agencies publish a list of regulations to be reviewed that year, and the public is invited to comment on whether and how those rules should be amended or repealed. If a state agency decides to change any rule in any way, it is treated like a new rule with a new public comment process.

Environmental Advocates recently joined with environmental, public health, labor, and community organizations and sent a letter to Senate leaders urging them to withdraw the bills. These proposals redirect state agencies away from their daily responsibilities to redundant, unnecessary work. And the bills pose a real threat to the standards that protect New Yorkers from unsafe conditions and environmental harm. As your environmental watchdog, we will continue to oppose this legislation and work to prevent their passage by the State Senate.

UPDATE: A fourth bad measure, also sponsored by Senator Murphy, has been added to this package of rollbacks.