Senator Whittemore, Representative Martin, and members of the State and Local Government Committee. My name is Pete Didisheim, I am the Advocacy Director for the Natural Resources Council of Maine, and I appreciate this opportunity to testify in opposition to LD 1354.
We believe that the APA currently contains important provisions for the legal review and final approval by the Office of the Attorney General of rules developed by state agencies. This makes sense. By submitting rules to the AG’s office for final review and adoption, the state takes advantage of the legal horsepower, professional experience, and objective perspective of the state’s top attorneys. This review helps make absolutely sure that agency rules are consistent with Maine law and the Constitution. These can be considered the “keep Maine out of legal trouble” provisions.
It is important to note that the number of rules reviewed each year is considerable—in the hundreds. In 2012 alone, according to the Office of the Secretary of State, 336 rules were developed by 29 agencies. The AG’s review of these rules and their final stamp of approval likely have helped protect state agencies from regulatory controversies, and, quite possibly, litigation.
We are baffled by the proposal in LD 1354 to shift these functions to state agencies. Although the Office of the Attorney General would still have an advisory role, state agencies could ignore this advice and adopt rules based on political considerations. In this fashion, the bill creates a new possibility of the final stage of the rulemaking process being politicized—which we think would be a mistake. We believe the final legal steps of the rulemaking process should remain apolitical, in the hands of the State’s attorneys who would need to defend state agencies against any claims that could arise as the result of a faulty rule.
Some areas of regulatory, administrative, and Constitutional law are highly complex, with decades of legal cases and precedents that must be considered as part of any legal review of a proposed rule. Takings law is one such area. We believe the current system of running all rules through the same final legal review and approval process provides a level of “quality assurance” that is far superior to LD 1354’s proposed approach of giving these roles to each of the agencies. The legal team at most agencies, it should be emphasized, is very thin.
If LD 1354 were adopted, then nearly every state agency would need to add legal capacity to replicate what already exists in a single place in the Office of Attorney General – which is not warranted, prudent, affordable, or efficient.
For these reasons, we urge the Committee to vote Ought Not to Pass on LD 1354. Thank you for your consideration of these comments, and I would be pleased to answer any questions you may have.
