Re: Regulation Lawsuit Victory Posted: January 14, 2002
On January 11, 2002, Franklin Circuit Court Judge William Graham entered a decision in the case of Patton v. Sherman, striking down KRS 13A.333 and two related statutes. The decision removes the ability of the Administrative Regulation Review Subcommittee to cause a regulation to sunset by finding it "deficient." The Sierra Club and Kentucky Resources Council participated in this case with a "friend of the court" brief that I authored, which supported the position advocated by the Patton Administration and accepted by the court.
While oversight of the implementation by the Executive Branch of laws enacted by the Legislative Branch is an appropriate constitutional role of the General Assembly, KRS 13A.333, which empowered a committee of the legislature to tag a regulation with a finding of "deficiency" resulting in a sunsetting of the regulation at the end of the following General Assembly unless the regulation was enacted into law, had too often been used by the regulation oversight committees to "kill" regulations that were within the intent and letter of the law but offended some industrial interest group, or to pressure agencies into weakening the regulations.
There will certainly be a legislative response to the court ruling, (Sen. David Williams introduced such a measure as SB 1 on Friday) and the ruling will be appealed, but the circuit court decision restores, for the moment, the appropriate balance between the branches of government concerning regulations.
The most immediate effect is on the Cabinet's concentrated animal feeding operations regulations, which had been held by the other Franklin Circuit Court Judge to have violated the two-year prohibition in KRS Chapter 13A against adopting a new regulation substantially similar to one rejected by a legislative committee. Hank Graddy, representing the Sierra Club and KRC in the "factory farm" case, will be moving the court to reconsider that decision in light of this ruling.
The court decision also struck down KRS 13A.032, which allowed a committee of the legislature to create "legislative intent" by rejecting a regulation, and KRS 13A.140(1), which allocated the burden of proof of validity of the regulation to the agency