2023 Testimony on HB40

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Before The House State Government Committee
February 23, 2023

Chairman, Committee members, my name is Tom FitzGerald and I am a lobbyist for the Kentucky Resources Council. I appreciate this opportunity to provide testimony in opposition to House Bill 40, and to ask that you not advance the bill to the floor for consideration. There are two bases for our opposition: 

  1. the lack of need for the bill, and
  2. the constitutional problems with the attempt to delegate legislative and judicial authority to the Office of the Attorney General, and the incursion into the province of the Executive Branch by attempting to nullify administrative regulations with the General Assembly is not in session.

As to the first point, the bill is not needed. Those situations in which a legislative committee (either the Administrative Regulation Review Subcommittee or the committee of jurisdiction) has found an Executive Branch agency regulation to be deficient, and where that regulation has then become effective notwithstanding due to a determination by the Governor, are exceedingly rare, and in many years, nonexistent.

  • In 2022, 2 regulations were found deficient out of the 550 reviewed, and 1 was put in place.
  • In 2023, out of 66 reviewed so far, 6 have been found deficient and are in effect.
  • From 2005-21, there were over 10,648 regulatory actions before the ARRS, and some 25 regulations were found deficient and put into effect during that time.

All told, for the period of 2005 through 2023, less than 3/10 of 1% of all regulations reviewed by the Administrative Regulation Review Subcommittee have been found deficient and have gone into effect notwithstanding. The current process is quite sufficient to assure that in those rare instances in which there is a determination of deficiency followed by the regulation taking effect notwithstanding, that such regulations can be addressed either through a judicial challenge or through subsequent legislative action.

Our second concern is that the bill violates the strict separation of powers provided for in Kentucky’s Constitution in several ways. First, the delegation of authority to the Office of the Attorney General to hear “appeals” on request of an executive branch agency regarding whether a regulation identified by an interim legislative committee as deficient is deficient, and to provide that unless that office reverses the committee finding that the regulation becomes immediately null and void, runs afoul of the decision in LRC v. Brown. It is an unlawful attempt to delegate to a constitutional officer a legislative power that does not exist except when the legislature is in session. 

If, as is the case, the General Assembly acting directly through an interim committee cannot invalidate a regulation (as LRC v. Brown held), it is equally the case that an interim committee cannot set in motion the invalidation of that regulation by providing for nullification unless the agency requests the Office of Attorney General to adjudicate whether the legislature was correct in that finding of deficiency.

Secondly, and perhaps most fundamentally, the determination of whether a regulation adopted by an executive branch agency comports with the underlying statutory mandate and authority is, as noted by the court in LRC v. Brown, a judicial function, and not one that can be assigned by the General Assembly to the Attorney General without encroaching on that judicial function in violation of the separation of powers doctrine. For these reasons, KRC respectfully opposes HB 40 and encourages the rejection of the bill. 

Thank you in advance for your consideration of these concerns.

By Kentucky Resources Council on 03/02/2023 9:55 AM
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