by Pete Didisheim, NRCM advocacy director
Good morning, Senator Schneider, Representative Barstow and members of the Committee. My name is Pete Didisheim. I am the Advocacy Director for the Natural Resources Council of Maine and I am here today to testify in opposition to L.D. 734.
This is the third time in three years that this Committee is holding a hearing on essentially the same bill. In 2004, the Legislature rejected LD 942, which was almost identical to LD 734. And last year, the Legislature rejected as LD 562 – again, essentially the same proposal, with the exact same title. We urge you to reach the same conclusion this year with a unanimous Ought Not to Pass recommendation.
Here are the main problems with LD 734:
• LD 734 is not needed. Maine’s rulemaking process is thorough and deliberate, allows for significant public input, and already requires agencies to document and address significant comments in a fashion that allows the interested public to understand the basis for a proposed rule. Each rule developed by the Department of Environmental Protection, for example, includes a detailed basis statement describing the major issues raised by individuals and organizations that participated in the rulemaking process, along with a detailed response by the agency as to whether and/or how each comment will be addressed. For anyone who wants to understand a particular rulemaking, the information is right here in the basis statement. As an example, DEP’s proposed rule on “Reasonable Costs for the Handling and Recycling of Electronic Wastes,” included 50 pages of the major comments and the agency responses. This is typical, and LD 734 would add no additional value to the process.
• LD 734 is unworkable. The proposed bill states that for rulemakings that involve a public hearing, the agency “shall identify the primary sources of information relied on in establishing the primary provisions of the rule.” What does this mean? A proposed rule often contains dozens of definitions, provisions, and adjustments to existing rules – each of which may receive comments. Does LD 734 suggest that an agency specify the individuals, by name, whose testimony at a public hearing was significant, in whole or in part, in affecting a provision of a bill? Do legislators believe that this would be possible if you were asked to do the same with each bill that came before your Committee?
• LD 734 is vague. The proposed bill does not define “primary sources,” and does not define “primary provisions” of a rule. In scientific research, a primary source refers to a paper based on either field or laboratory research that the author has performed personally, alone or with others. A secondary source refers to a paper that an author has written based on the research of others in which the author did not participate. Is this scientific definition of a primary source what the bill means by primary source? If so, many rules are not based on primary sources. Similarly confusing, how does an agency determine what the “primary provisions” are of a rule? Primary according to whom? If one person testifies on a provision, does that mean it is of “primary” importance? The vague nature of the bill almost certainly would invite new rounds of controversy, conflict, and delay in what already is a slow, deliberative, and sometimes contentious process.
• LD 734 advances a simplistic and inaccurate understanding of the rulemaking process. The rulemaking process is very similar to the legislative process, in that agency staff invite a broad range of opinion from interested parties and then use their best professional judgment about how to weigh and balance comments based on fact, experience, the public interest, agency mission, legislative guidance, costs, and feasibility. LD 734 seems to imply that judgment of agency staff is not valuable, that each provision of a rule must be tied to a public comment or “primary source” (whatever that is), and that more information than already is provided is necessary so that the public can understand agency rulemaking efforts. We fundamentally disagree. From our experience, the decisions by agencies in major rulemakings are made fully transparent in the basis statements, and it is the job of state agencies to use their best professional judgment in balancing competing interests when crafting a proposed rule.
We strongly urge the Committee to vote Ought-Not-To-Pass on LD 734.
Thank you for the opportunity to testify on this legislation. I would be glad to answer any questions that you may have.
