Regulations adopted by state agencies and gubernatorial emergency orders carry the weight of law, but Delawareans forced to comply with these mandates lack any real ability to influence the outcome. Three bills that will come before the General Assembly this year seek to change this by providing safeguards on the unrestrained rulemaking authority of the executive branch.
Placing a Check on the Unfettered Use of Emergency Powers
“During the recent pandemic, when the executive branch was not responsive to citizens’ concerns, opinions, and requests, they had little to no recourse,” said State Rep. Rich Collins (R-Millsboro), the lead sponsor of House Bill 245.
Introduced just prior to the end of the 2023 legislative session, the measure seeks to give the General Assembly the ability to impact the governor’s unrestricted use of emergency powers. “I filed the bill in June to give everyone a chance to consider it,” Rep. Collins said. “This measure is not intended as a criticism of Gov. Carney. In fact, it would not take effect until after he left office. Rather, it’s an attempt to correct a structural flaw that the pandemic revealed.”
State Sen. Dave Wilson (R-Cedar Creek Hundred), one of the bill’s prime Senate sponsors, said it recognizes the need for the governor to have the authority to act quickly in the event of an emergency or disaster. However, he said during protracted emergencies lasting more than six months, the General Assembly should have a role in the ongoing response. “If an emergency lasts more than 180 days, this bill would require the legislature to approve extensions of the governor’s state of emergency order,” Sen. Wilson said. “Through their legislators, citizens would have a voice in the renewal of emergency orders and the mandates they contain.”
The measure would not apply to any situation where the legislature was unable to convene a quorum, either in person or virtually. The bill is pending consideration of the House Administration Committee.
Providing Legislative State Oversight of Regulations
“State regulations can carry the weight of law, placing new restrictions, burdens, and costs on Delaware citizens, but Delawareans have virtually no ability to impact the regulatory process,” said State Rep. Jeff Spiegelman (R-Townsend). “While state agencies are required to publish pending regulations and solicit feedback, they are not compelled to make any changes in their proposals, regardless of public opinion.”
A little over a month ago, the Delaware Department of Natural Resources and Environmental Control (DNREC) finalized regulations mandating the aggressive, increasing sale of new zero-emission vehicles (ZEVs) – predominately battery-electric vehicles. The action was taken despite broad public opposition. Of the 4,426 individual public comments submitted to DNREC as part of the rulemaking process, nearly 94.5% opposed the regulatory restriction on selling new fuel-powered vehicles. Similarly, a poll of 300 likely voters conducted last February revealed that a majority (73%) opposed severely limiting the sale of new fuel-powered cars, trucks, and SUVs. Despite the public’s input, the rules were adopted in close to their original form.
Rep. Spiegelman said he will be soon introducing two new proposals that would result in meaningful reforms to restore Delawareans to their rightful place as active citizens, instead of passive subjects.
- Providing the General Assembly with Regulatory Oversight
This proposal would create the new Joint Committee on Oversight of Agency Regulations to engage in the review and oversight of regulations adopted by state agencies. Like laws in states such as Colorado and Utah, this act would do all of the following:
(1) Require that all regulations adopted by an agency between November 1 and October 31 expire at 5 p.m. on the following June 30, unless the General Assembly acts to prevent it.
(2) Establish criteria for the committee’s review of state agency regulations.
(3) Establish a process for the committee’s review and oversight of state agency regulations, including the requirement of a staff report, public hearings, and committee recommendations to the General Assembly.
(4) If the committee recommends a regulation not be allowed to expire, requires the committee to draft and introduce a bill that removes the expiration of each regulation the committee recommends not be allowed to expire.
- Bill to Give Citizens a Voice in State Regulations This proposal seeks to enhance the General Assembly’s oversight of regulations adopted by state agencies by giving standing House and Senate committees purview to review regulatory proposals with their scope of focus.
According to the non-partisan Carl Levin Center for Oversight and Democracy at the Wayne State University Law School Levin Center, 33 states have a higher level of regulatory oversight than Delaware. A report issued by the center on regulatory oversight in The First State concluded: “Overall, the role of legislature is primarily advisory and there are no real mechanisms to halt new rules, unless by chance the agency is among the small number of entities the Joint Legislative Oversight and Sunset Committee reviews annually.”
Republican legislators added that they also plan to make a renewed effort to pass pending legislation to give the General Assembly authority over the zero-emission vehicle sales mandate. The first bill (House Bill 123), sponsored by House Republican Leader Mike Ramone (R-Pike Creek South), would only allow the Department of Natural Resources and Environmental Control (DNREC) to adopt the regulations with the consent of the General Assembly. That bill passed the House last year and is pending consideration in a Senate committee. The second measure (Senate Bill 96), sponsored by Senate Republican Whip Brian Pettyjohn (R-Georgetown), would seeks to remove DNREC’s ability to promulgate the regulations by eliminating its authority to adopt any rules dealing with vehicle sales mandates. Both pieces of legislation are retroactive to March 1, 2023.
“Nothing better illustrates the need for regulatory reform better than the EV sales mandate,” Sen. Pettyjohn said. “The regulation was finalized despite overwhelming opposition to it. Citizens’ concerns were ignored in favor of the pursuit of a political agenda. When elected leaders display such a high level of disregard for the people they are supposed to be serving, it’s clear the system is dysfunctional and in dire need of reform.”
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