COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
CASE NO. 01-CI-00660
HON. PAUL E. PATTON PETITIONER
SUSAN WUNDERLICH RESPONDENTS
MEMORANDUM OF AMICUS CURIAE
SIERRA CLUB AND KENTUCKY RESOURCES COUNCIL, INC.
Come the Amicus Curiae, Sierra Club and Kentucky Resources Council, Inc., and submit this memorandum in support of Petitioner's Motion for Partial Summary Judgment and in opposition to the Motions of Respondents for Partial Summary Judgment and To Dismiss.
Statement of Interest
The Sierra Club and Kentucky Resources Council, Inc., two organizations with members residing in the Commonwealth of Kentucky and dedicated to conservation of natural resources within the Commonwealth, are Intervening Defendants in an action pending in Division I of the Franklin Circuit Court, Kentucky Farm Bureau Federation, Inc., et al. v. Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet, et al., Civil Action No, 00-CI-00706. That action involves a challenge to 401 KAR 5:047E, an emergency regulation addressing the environmental effects of concentrated animal feeding operations, the so-called factory farms in which livestock are raised in confined conditions, generating significant volumes of animal wastes and posing air, land and water pollution concerns. On May 25, 2001, the Franklin Circuit Court declared 401 KAR 5:047E to be in violation of KRS 13A.333 in that the current regulation was substantially similar to a regulation previously found deficient by the Administrative Regulation Review Subcommittee and which had expired and could not be replicated thereafter for a period of two years.
A motion to vacate, alter or amend was filed on June 4, 2001, and
is awaiting decision.
The immediate interest of amicus curiae is straightforward to the extent that the legislative review committees lack the constitutional authority to set into motion the process by which a regulation will expire, the outcome of the Farm Bureau litigation will be different since that the former regulation would not then have been lawfully invalidated and the current regulation would not run afoul of the KRS 13A.333(6) prohibition against repromulgation of similar regulations.
Amicus Curiae have a broader interest in the outcome of this litigation, in that the current regulation review process, empowering a small subset of the General Assembly to exercise direct and indirect influence over the lifespan and substance of regulations, has tended towards accommodation of more insular concerns of special interests to the detriment of the broader public interest, public health, public welfare and environmental quality.1
SUMMARY OF ARGUMENT
The instant challenge presents a justiciable controversy properly entertained as a declaratory judgment action and presenting in clear focus the question that has hung over the regulation implementation process for the past 17 years: if the General Assembly cannot delegate to subset of its members the authority to veto a regulation, can it delegate the power to those same committees to fatally wound a regulation so that it dies at a predetermined time in the future? Likewise, can the General Assembly delegate to a legislative committee the power to define wherein lies the legislative intent, to further determine whether a regulation promulgated by an agency of the executive branch is consistent with that intent, and to create by issuing a nonbinding determination of deficiency an evidentiary presumption regarding the conformity of that regulation with the legislative intent?
The answer to these questions, under the Kentucky Constitution as illuminated in the seminal decision of Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984) is no.
1. THE DELEGATION TO THE ADMINISTRATIVE REGULATION REVIEW SUBCOMMITTEE OF THE AUTHORITY TO SET IN MOTION THE EXPIRATION OF A REGULATION DEEMED INCONSISTENT WITH LAW VIOLATES THE SEPARATION OF POWERS DOCTRINE
The Brown Court enunciated clearly the limits of the authority of the Legislative Research Commission and its committees with respect to legislating:
The legislative power lies solely within the province of
the General Assembly and its entire, publicly elected
membership. . . . Whatever else the LRC may constitutionally
do, it may not legislate.
Brown, 664 S.W.2d at 911.
Applying the strict construction approach that the Supreme Court of Kentucky has recognized is appropriate given the history of Sections 27 through 1229 of the state constitution, and that court s rejection of the idea that the legislative branch possesses residual powers beyond the power, acting as body of the whole, to legislate, it is clear that the delegation of powers to the Administrative Regulation Review Subcommittee and the committees of jurisdiction over various matters that hear and pass on proposed regulations subsequent to ARRS review, has transgressed the constitutional boundaries defining legislative authority and reserving non-legislative powers to other, co-equal branches of government.
Measured by the yardstick of strict construction, on scrutiny several key provisions of KRS Chapter 13A come up short.
A. THE DELEGATION OF POWER TO THE REGULATION SUBCOMMITTEE TO DETERMINE A REGULATION INCONSISTENT WITH LAW SO AS TO CAUSE THE REGULATION TO TERMINATE IN THE FUTURE, VIOLATES KENTUCKY CONSTITUTION SECTIONS 27-28 AND IS A LEGISLATIVE ENCROACHMENT INTO THE POWER OF THE EXECUTIVE BRANCH
In Brown, the Kentucky Supreme Court rejected as being unconstitutional, a statutory mechanism by which the Administrative Regulation Review Subcommittee, acting during the interim between legislative sessions, held a legislative veto power over the adoption of regulations. Brown, supra at 917-919. The Court noted that the adoption of administrative regulations to implement laws is an executive function, and that the determination of whether such regulations conformed to legislative intent was a judicial function, and that the statute transgressed both borders in allowing a relative handful of General Assembly members to cause a regulation to expire for lack of approval, based on that subcommittees decision that the regulation in question did not comport with statutory authority and carry out legislative intent.
KRS Chapter 13A suffers from the same fatal flaws as KRS Chapter 13 in both respects.
If, as is the case, the Administrative Regulation Review Subcommittee cannot exercise legislative power by either vetoing an administrative regulation or delaying the effective date of an emergency regulation; Brown, supra, at 918, then it follows a fortiori that the General Assembly cannot lawfully delegate to that subcommittee the power to fatally wound a regulation and to cause it to expire at the end of the next legislative session, as KRS 13A, since the legislative power cannot be lawfully delegated to and exercised by a subcommittee of the General Assembly.
It is apparent, notwithstanding the assertion that a determination of deficiency of a regulation made by the Administrative Regulation Review Subcommittee is nonbinding, KRS 13A.030(2), that the effect of such a determination is both binding and fatal to the longevity of a regulation found deficient, since it is mandated that such a deficient regulation shall expire at the adjournment of the legislative session, (depending on when the regulation is reviewed). KRS 13A.333(1) (3).
As such, the General Assembly has transgressed the rigid lines of demarcation of constitutional authority, conferring broad legislative powers to a subset of legislators to determine law and to set in motion the sunsetting of regulations considered offensive, without the necessity of any further action by the legislature acting as a properly constituted corporate body.
B. THE DELEGATION OF POWER TO THE REGULATION SUBCOMMITTEE AND SUBSTANTIVE REVIEW COMMITTEES TO DETERMINE WHETHER THE REGULATION CONFORMS WITH STATUTORY INTENT OR TRANSGRESSES EXECUTIVE POWERS IS A LEGISLATIVE ENCROACHMENT INTO THE POWER OF THE JUDICIAL BRANCH OF GOVERNMENT IN VIOLATION OF KENTUCKY CONSTITUTION SECTIONS 27-29
In Brown, the Court noted that the demarcation of authority in the constitution reserved to the executive branch of government the power to adopt administrative regulations so as to carry out the purpose of the legislative enactment.
The adoption of administrative regulations necessary to
implement and carry out the purpose of legislative
enactments is executive in nature and is ordinarily
within the constitutional purview of the executive branch
Brown, supra, at 919.
The statutory scheme of KRS Chapter 13, by instituting a legislative veto of executive branch action, was held violative of the powers of the executive branch.
The Brown court also noted that the statute transgressed the boundary of judicial power by conferring on the regulation review subcommittee the power to determine the degree of conformity of the regulation with legislative direction:
It will also be recalled that the review of the regulations
was for the stated legislative purpose of determining if they
comported with statutory authority and if they carried
out the legislative intent. It requires no citation of authority
to state unequivocally that such a determination is a judicial
matter and is within the purview of the judiciary, the Court
Brown, supra, at 919.
There is little question that KRS Chapter 13A has crossed that same boundary by purporting to delegate to the Administrative Regulation Review Subcommittee and the substantive legislative committees the authority to fatally wound a regulation based on the determination of conformity with statutory authority and legislative intent . A review of the standards by which the regulation is to be reviewed reflects the same infirmities that doomed the earlier statute:
The subcommittee may make a nonbinding determination:
(a) That an administrative regulation is deficient because it:
1. Is wrongfully promulgated;
2. Appears to be in conflict with an existing statute;
3. Appears to have no statutory authority for its
* * *
6. Is in excess of the administrative body s authority; or
7. Appears to be deficient in any other manner[.]
Both in the sweeping breadth of the delegated power to declare a regulation invalid (if found deficient in any other manner ) and in the specific delegation of power to determine the regulation to be inconsistent with the enabling statute, KRS 13A.030(2)(a) has transgressed the same border as its predecessor and has invaded the province of the judiciary.2
The grant by the General Assembly to one or more legislative committees to parse legislative intent post hoc and to create a presumption of the conformity or nonconformity of a proposed regulation with that intent, likewise usurps a judicial function. According to KRS 13A.032:
A finding of deficiency made in accordance with KRS
13A.030(2)(a) made by a subcommittee shall establish
a prima facie case of legislative intent in any action or
proceeding in this state in which the validity of an
administrative regulation is at issue.
KRS 13A.032 (2000).
Subcommittee, as used in that statute and elsewhere in KRS Chapter 13A, includes the Administrative Regulation Review Subcommittee, any other subcommittee of the Legislative Research Commission, an interim joint committee, or a House and Senate standing committee[.] KRS 13A.010(15). Pursuant to KRS 13A.290, after review by the Administrative Regulation Review Subcommittee, a regulation is referred to a subcommittee of appropriate jurisdiction over the subject matter [of the regulation] or, during the session, the House and Senate standing committees of jurisdiction over the subject matter. KRS 13A.290(6)(a). Those committees are empowered to make the same nonbinding determination of conformity with the statutes based on the same KRS 13A.030 criteria as is the Administrative Regulation Review Subcommittee. KRS 13A.290(8).
Thus the legislature has attempted to confer on either of two or three legislative committees the power to determine, post hoc, legislative intent and to further decide whether a regulation conforms to that intent, and in so doing, to create a judicial presumption affecting the burden of going forward and of persuasion in a subsequent judicial proceeding involving the validity of the regulation. Such an arrogation of power exceeds the province of the legislative branch, for while the legislature is competent to create rebuttable evidentiary presumptions provided that the presumptions are neither conclusive nor irrational, a subset of legislators acting as a subcommittee is not constitutionally competent to define legislative intent, to then tag a regulation with a finding of conformity or non-conformity with that intent, and by so doing create an evidentiary presumption concerning that particular regulation.
In sum, remedies exist in the courts and in the now-annual legislative sessions to address those instances in which the executive branch agencies are believed to have exceeded statutory authority. KRC Chapter 13A, by attempting to exert further legislative control via committee over the regulation promulgation process, crafts an additional remedy that is neither necessary nor constitutionally permissible.
For the foregoing reasons, Amicus Curiae Sierra Club and Kentucky Resources Council, Inc., believe the challenged statutes, KRS Chapter 13A.030(2)(a), 13A.032, 13A.100(1)(a), 13A.120, 13A.140(1) and 13A.333 to be in clear and irreconcilable violation of the Kentucky Constitution, and respectfully request that partial Summary Judgment be granted on behalf of the Petitioner, Paul E. Patton, and that the Respondents Motion for Partial Summary Judgment and Motion To Dismiss be denied.
1 The practical effects of the current review process do not determine the constitutionality of the delegation of power to the LRC and its committees. It is fair to note, however, that the instances in which legislative committee review of administrative regulations has resulted in strengthening, rather than weakening of such regulations in the area of environmental protection, are virtually nonexistent. Propelled by the myth that environmental protection and economic progress are incompatible values, the review process has dampened executive branch efforts to protect air, land and water resources, frustrating rather than effectuating the enacted legislative intent to provide for the prevention, abatement, and control of all water, land and air pollution[.] KRS 224.10-100, and the prevention, abatement and control of water, air and soil pollution resulting from mining[,] KRS 350.300.
2 As noted by the Brown Court, it is not the forming of an opinion by a legislative committee as to the conformity of the regulation with the statute that is violative of the constitution, but rather the statutory effect of the determination in causing a regulation to be vetoed that is invalid. Brown, supra, at 919 fn.14. In like manner, it is not the opining but the fatal consequences of the attachment of a letter of objection based on that committee opinion that dooms the current statutory scheme.