Eric’s right. The immediate effect of Governor Gregoire’s suspension of “non-critical” rulemaking is likely to be the exact opposite of what she hoped for: businesses will have no earthly idea whether proposed regulations that affect them will be going forward. So we can all expect a scramble, with everyone trying to figure out what the new policy means—and lobbying to have individual rules designated either as “critical” (in cases where particular businesses think that a rule would help them) or as “non-critical” (in cases where they’d rather not comply).
Regulatory certainty? Not so much.
The governor’s executive order creates broad exemptions to allow “critical” rules to move forward if they would help protect public health, safety, or natural resources; if the rules are otherwise required by law; or if the proposed rulemaking is “beneficial to” or “supported by” regulated entities themselves.
But that leaves rulemaking in a huge muddle. Consider the following rules that are currently in the pipeline. Will any of them be allowed to go forward? All? None? Who knows!!!
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- The state Department of Agriculture is considering rules to help prevent the spread of the European Grapevine Moth—a recently introduced pest that could create a mess for the state’s vineyards and orchards.
- The State Patrol is considering an update of its standards for testing blood alcohol levels, certifying breathalyzer ignition locks, and changing standards requiring private tow-truck operators to screen out convicted kidnappers.
- The Department of Social and Health Services is revamping standards for elder care to require adequate training and criminal background checks for adult family homes, and improve medical care for dialysis patients.
If you peruse the state’s rulemaking website, you can find at least a dozen similar examples—proposed regulations that might affect health, safety, or natural resources, or might be supported by at least some people in the regulated community, and whose status is now up in the air. In fact, it’s kind of hard to find proposed rules that would be quashed, clearly and unambiguously, by the new executive order. I mean, I’m sure there are some . . . but those examples seem more like exceptions than the norm.
Which makes me wonder what the point of the executive order is. If it was to create regulatory certainty that will jump-start small business job creation . . . well, I’m totally unconvinced that this will help. If it was to get political points for a decision that was made for budgetary reasons . . . well, the Governor’s erstwhile supporters are lining up against the move.
But if it was to signal executive weakness and a muddled view of public policy . . . well, Mission Accomplished!
Peter J. Smith
I agree with Clark and Eric as far as the uncertainty that Executive Order 11-06 creates. It will be interesting to see agency interpretation and implementation of the Order moving forward. For some additionally links, and hopefully, an update on agency interpretation soon, follow GordonDerr’s blog at: http://www.northwestlandmatters.com/municipal/governor-gregoire-suspends-rulemaking/