Photo by Simon Wijers on UnSplash
Update: on December 10 the DEP responded to the LRB's November 30 letter, stating correctly that "given the clear and specific process laid out in the Regulatory Review Act, there is no legal authority for the LRB to substitute its own interpretation of the statute as a rationale for failing to perform its administrative role in the regulatory process," and that "[s]ince both the Attorney General and the General Counsel approved the CO2 Budget Trading Program final rulemaking for form and legality, your office is required to publish" the Program regulation.
In mylast blog, I discussed how Republican leaders in the Pennsylvania General Assembly were using the state Regulatory Review Act (RRA) to delay finalization of the DEPs proposed CO2 Budget Trading Program regulation, which would enable the Commonwealth to participate in the Regional Greenhouse Gas Initiative (RGGI).
This blog is about the latest twist in that story: after the Wolf administration delivered the regulation to the state Legislative Reference Bureau following a form and legality review by the Attorney General, the Bureau refused to publish it in the Pennsylvania Bulletin, thereby blocking it from formally becoming law. The reason? The Bureau is misinterpreting the RRA. The result: unless the Wolf administration goes to court, Pennsylvania will have to wait for months to experience the benefits of RGGI: healthier air, lower carbon pollution, and the opportunity to invest hundreds of millions of dollars in the Commonwealths communities and workers.
Waitthe Legislative Reference what?
The main job of theLegislative Reference Bureau, or LRB, is to draft bills for legislators. Its role in Pennsylvanias regulatory rulemaking process generally goes unremarked because, as a rule, its unremarkable: at the end of the long process prescribed by the RRA, the LRB publishes regulations in the Bulletin. Thats how regulations are officially "promulgated" in Pennsylvania.
What the LRB does not do is make important legal or regulatory policy decisions - at least not until now. Things changed in late November, when, after the House failed to take timely action on a "resolution of disapproval" passed by the Senate, the DEP delivered the RGGI regulation to the LRB and got thisresponse: "our office is not authorized at this time to publish the Environmental Quality Board Final Rulemaking #7-559: C02 Budget Trading Program, submitted November 29, 2021. Currently, Senate Concurrent Regulatory Review Resolution l (S.C.R.R.R. 1) disapproving Final Rulemaking #7-559 is still pending before the House of Representatives."
For reasons explained below, this was a legally incorrect decision, and it will have consequences. If the LRB were fulfilling its lawful duty, the RGGI regulation could be published by the end of the year, and that would put Pennsylvania in position to participate in the first RGGI allowance auction of 2022, in March.
In refusing to publish the regulation, however, the LRB is choosing to embrace a dubious and self-serving interpretation of the RRA by House and Senate Republicans that would delay Pennsylvania's participation in RGGI until the second quarter of 2022 (at the earliest) and set a harmful precedent for all state agency rulemakings
How did we end up here?
Under the RRA, the legislature can kill a proposed regulation by first passing a timely resolution of disapproval and then, if the Governor vetoes the resolution, by overriding the veto with two-thirds supermajorities in both chambers. For present purposes, the key section of the law is 7(d), which says that when a resolution of disapproval has been passed (or reported") by an appropriate legislative committee, the Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer, from the date on which the concurrent resolution has been reported, to adopt the concurrent resolution . . . If the General Assembly does not adopt the concurrent resolution or override the veto in the time prescribed in this subsection, it shall be deemed to have approved the final-form . . . regulation. [Emphasis added]
The Senate Environmental Resources and Energy Committee reported a timely resolution of disapproval on September 14, and the Wolf administration is reading the unambiguous language of the statute to mean what it says: that after September 14eachchamber had 30 calendar days or ten legislative days, whichever is longer, to pass the resolution.
The Senate voted on the resolution on October 27, its tenth legislative day after September 14, passing it by a 32-18 margin. By the time the DEP submitted the regulation to the LRB on November 29, the House had had nineteen session days since September 14 (and 76 calendar days) and had not passed the resolution. As a result, the DEPs CO2 Budget Trading Program was deemed approved" under section 7(d) of the RRA, and the Wolf administration then took the logical next steps: it submitted the regulation to the state Attorney General for a "form and legality" review under the Commonwealth Attorneys Act, and then to the LRB.
The Attorney General has approvedas to form and legality, but House and Senate Republicans are arguingthat the RRA gives the chambers separate andconsecutive 30-calendar-days-or ten-legislative-days periods to adopt a resolution of disapproval and unfortunately, the LRB has agreed with them.There is nothing in the RRA to support this interpretation. The General Assembly must adopt the resolution within the time prescribed in section 7(d) of the RRA, and because the House did not do so on time, the resolution and the RRAs bar on promulgation have expired. Given the LRB's position, however, you might say that the resolution is undead a sort of politically reanimated zombie.
What do you do with a zombie?
According to the internet, the way to kill a zombie is to get at its brain. In this case, the brain of the zombie resolution of disapproval is the House Republicans interpretation of section 7(d) of the RRA. Getting at it will probably take a lawsuit against the LRB and the House Republicans that, or a directive to the LRB from theJoint Committee on Documents(yes, there's a Joint Committee on Documents in Pennsylvania), which oversees the LRB.
Absent such action, the LRBs refusal to publish the regulation will delay Pennsylvanias participation in RGGI by months because Senate Republicans will threaten an override of Governor Wolfs inevitable veto of the zombie resolution after it passes in the House, even though they dont have the votes. Then the LRB will presumably continue to balk until an override vote fails (or is never called). While these delay tactics may be aimed at the Governor, its ultimately the people of Pennsylvania theyll hurt. For the peoples sake, the Wolf administration should seek redress in the courts.
- Ten Zombie Comedies That Won't Rot Your Brain - tor.com - January 9th, 2022
- A big zombie blockbuster is among the movies on TV tonight - JOE.ie - January 9th, 2022
- Why its grim, but unsurprising, that the U.S. Capitol attack looked like it was out of a 'zombie movie' - The Conversation CA - January 9th, 2022
- Spyker brand set to return in 2022 like a zombie - CNET - January 9th, 2022
- How the CDC would act in a zombie outbreak - Boing Boing - January 9th, 2022
- CES Is Back in Las Vegas for 2022, and It Is a Zombie Version of Its Former Self - Daily Beast - January 9th, 2022
- 'Project Zomboid': Healing And First-Aid Guide - International Business Times - January 9th, 2022
- This B-Movie-Inspired Action-RPG Looks Like An Anime Fan's Fever Dream - Kotaku - January 9th, 2022
- Middletown Mayor Tony Perry takes office for fourth consecutive year - Asbury Park Press - January 9th, 2022
- Best Zombie Games To Play In 2022 - Tech News Today - December 27th, 2021
- Living with COVID doesnt mean being a zoomed-out zombie - Sydney Morning Herald - December 27th, 2021
- Rob Zombie, Mastodon and Mudvayne are the metal pirates of the Caribbean on the Voragos cruise - Louder - December 27th, 2021
- 'Difficult for zombies to survive in South Korea': Park Hyung-sik on what if outbreak in his K-drama Happiness occurs in real life - AsiaOne - December 27th, 2021
- Sherdogs 2021 Walkout Song of the Year - Sherdog.com - December 27th, 2021
- Every Evil Doctor Strange Marvel Has Already Introduced Before Multiverse Of Madness - FandomWire - December 27th, 2021
- What to watch on TV this Christmas Day - from Strictly to the zombie Christmas movie - Essex Live - December 27th, 2021
- Zombie Army 4: Dead War Update 1.45 Patch Notes - Attack of the Fanboy - December 14th, 2021
- The World's Coldest Inhabited Place Is Burning Because of ... - December 14th, 2021
- Rhik Samadder tries fencing: Now Im ready for the zombie apocalypse - The Guardian - December 14th, 2021
- There's An IRL Zombie Apocalypse You Can Try To Survive In Vancouver & It's Legit Scary - Narcity Canada - December 14th, 2021
- Remember When the Tri-City Americans Were on 'Z Nation', a Popular Zombie Show? - newstalk870.am - December 14th, 2021
- This Mashup of ROB ZOMBIE & The Succession Theme Is Basically Perfect - Metal Injection - December 14th, 2021
- Covid supports have not created 'zombie' firms - report - RTE.ie - December 14th, 2021
- Recap: Day of the Dead Episode 9 turns everyone into a detective and a suspect - SYFY WIRE - December 14th, 2021
- The 2021 Pittsburgh Steelers might be the NFLs zombie squad - Behind the Steel Curtain - December 14th, 2021
- UFC 269 video: Embedded, part 5 - Hes the Brazilian Zombie - Bloody Elbow - December 14th, 2021
- How TV and movie zombies have evolved from the mindless undead to superhuman killing machines - Yahoo News - November 29th, 2021
- Zombie properties a growing problem in Capital Region The Daily Gazette - The Daily Gazette - November 29th, 2021
- Yeon Sang-ho Talks Season 2 of 'Hellbound' and Third Zombie Movie - - The Nerd Stash - November 29th, 2021
- Hellbound Creator Yeon Sang-ho Details Season 2 Plans, Teases Third Zombie Movie in World of Train to Busan - Variety - November 29th, 2021
- Recap: Weddings, funerals, and sexy time: Day of the Dead Ep. 7 gets at what it means to be a human (and not a zombie) - SYFY WIRE - November 29th, 2021
- BSU professor presents on zombies and colonialism as part of Native American Heritage Month events - Bemidji Pioneer - November 29th, 2021
- America's Favorite Zombie Officer Returns on 4K with Blue Underground's Maniac Cop II and III - Critical Blast - November 29th, 2021
- Warnings of orphan and zombie wells spark debate on bonding by oil, gas companies - The Denver Post - November 29th, 2021
- Zombie river? London's Thames, once biologically dead, has been coming back to life - NPR - November 13th, 2021
- Zombies to the rescue: The arcane voting rule that could save Dems antitrust agenda - POLITICO - November 13th, 2021
- Rob Zombie Confirms The Munsters Officially Shooting, Offers Tease of Logo - ComicBook.com - November 13th, 2021
- LUCE: The zombie issues of legacy preference - Yale Daily News - November 13th, 2021
- RUPCO seeks to rehabilitate and sell 10 zombie properties in Kingston - The Daily Freeman - November 13th, 2021
- Stream Slipknot, Rob Zombie, Code Orange and more from Welcome To Rockville this weekend Kerrang! - Kerrang! - November 13th, 2021
- Joivan Wade Talks About Doom Patrol's Cyborg, Being A Zombie, And His Doctor Who Inspiration - Exclusive Interview - Looper - November 13th, 2021
- Zombie skydivers, zombie drag queens, food and more planned for Halloween Zombie Bike Ride - The Aggie - The Aggie - October 9th, 2021
- Rob Jabbaz Brings THE SADNESS To The Zombie Apocalypse - FANGORIA - October 9th, 2021
- Unusual weather is causing zombie canola to flower in the fall - CBC.ca - October 9th, 2021
- Killing Zombies Is Against The Law In Louisiana - News Radio 710 KEEL - October 9th, 2021
- The Best Zombie Movies On Hulu [October 2021] - Looper - October 9th, 2021
- Rob Zombie Pays Tribute to 'Hot Rod Herman' in The Munsters Movie Reboot - MovieWeb - October 9th, 2021
- Cops called 175 times on Beaverton zombie condo squatters - KOIN.com - October 9th, 2021
- Stubbs the Zombie and Paladins are next weeks Epic Games Store freebies - Destructoid - October 9th, 2021
- John Ratcliffe's Zombie Campaign Keeps Paying His Wife $3000 A Month To Manage Its Books - Forbes - October 9th, 2021
- 13th annual Asbury Park Zombie Walk returns to the boardwalk following COVID break - Asbury Park Press - October 9th, 2021
- 2-Nights of Halloween Events: Zombie Night and Goblins and Goodies in LaVergne - Wgnsradio - October 9th, 2021
- How Rob Zombie's 'Halloween II' Paved the Way for a New Kind of Horror - Bloody Disgusting - October 9th, 2021
- Email is a zombie that keeps rising from the dead: the endless pursuit of Inbox Zero - The Guardian - October 9th, 2021
- The 2021 Asbury Park Zombie Walk In Asbury Park, New Jersey - 943thepoint.com - October 9th, 2021
- RUN! This Zombie Apocolypse 5K in Terre Haute will have you avoiding the undead, while raising money for a good cause - WTHITV.com - October 9th, 2021
- Podcast #318: Battling the Zombie of the Fairness Doctrine - Radio Survivor - October 9th, 2021
- 'TWD': Seth Gilliam doesn't think he'd want to live in post-apocalyptic world - Insider - October 9th, 2021
- Hands-on with Back 4 Blood's retail version: Our three-hour stream is now on VOD - Ars Technica - October 9th, 2021
- 'Back 4 Blood' here's when the zombie shooter unlocks in each region - For The Win - October 9th, 2021
- It's Time to Put the Right-Wing Zombie Death Cult on Trial - Daily Beast - September 5th, 2021
- The Best Zombie Games Of All Time - GameSpot - September 5th, 2021
- Poll: What's the Best Rob Zombie Song? - Vote Now - Loudwire - September 5th, 2021
- Best Zombie Movies Streaming on Hulu, HBO Max, and Amazon Prime - Yahoo Entertainment - September 5th, 2021
- Fantasy Fest Parade, Street Fair, Even Zombie Bike Ride Canceled At Key Wests Biggest Party Of The Year - CBS Miami - September 5th, 2021
- Korean zombie film 'Train To Busan' rumoured to get American remake; fans are not happy - Times of India - September 5th, 2021
- 'Train to Busan': Fans Are Not Happy About the US Remake 'Train to Busan:' Fans Are Not Happy About the US Remake - Showbiz Cheat Sheet - September 5th, 2021
- The Zombie Attack is returning to Louisville's streets. Here's what to know - Courier Journal - August 24th, 2021
- 8 Surprisingly Realistic Zombie Movies (& 7 That Are Way Over The Top) - News Nation USA - August 24th, 2021
- Fast and Furious: Zombies - The New Indian Express - August 24th, 2021
- Years Before COVID, Zombies Helped Prepare One Hospital System for the Real Pandemic - Scientific American - August 24th, 2021
- Rebellion VFX Releases A New Zombie Army Animated Short - Bleeding Cool News - August 24th, 2021
- Authorities could be getting close to solving Zombie Mike rape cases after unidentified remains found in Niskayuna - NEWS10 ABC - August 24th, 2021
- Call of Duty: Vanguard will have a Zombies mode, made by Treyarch - Polygon - August 24th, 2021
- Fishtown Local: Attack of the zombies | Opinion | gloucestertimes.com - Gloucester Daily Times - August 24th, 2021
- Fear TWD Season 7 Teaser Prepares for the Fallout of the Nuclear Zombie Apocalypse - ComicBook.com - August 24th, 2021
- Call of Duty: Mobiles new zombie mode will extend into next season - Digit - August 24th, 2021
- Mental Health And The Zombie Run With YKHC - KYUK - August 24th, 2021
- Dilapidated 'Zombie House' Demolished On Long Island After Years Of Complaints - Daily Voice - August 24th, 2021
- Netflix Based K-Zombie Horror Title 'Kingdom: The Blood' Unveils First Teaser - GLYFE Nation - August 24th, 2021
Reviewed and Recommended by Erik Baquero