N.C. House Bill 162, on which we reported back in August , may have a rough road to passage during next week’s special session of the General Assembly.
In Thursday’s meeting of the Select Committee on Administrative Procedure Laws, a number of House Republicans made it clear they’re nowhere near as enthusiastic about changes to the final bill as their colleagues in the Senate.
Broadly, the bill would curb the ability of state agencies to make rules and would get the General Assembly much more intimately involved in all sorts of regulation, seeing them take on responsibilities usually delegated to agencies that report to the Council of State.
Specifically – and of concern to a number of House lawmakers – it would prevent agencies from enacting any permanent rule that have a financial impact of $100 million or more, regardless of its financial benefits.
Rep. Sarah Stevens, vice-chair of the committee, said that could impact a lot of agencies and services people depend on every day.
“Who will make the rules to implement the over $100 million things?” Stevens asked. “Are we going to have to do that as a General Assembly on a daily basis?”
Stevens said that had the potential to bring things to a “grinding halt” as the Assembly struggled with the minutiae of rules and policies and could end up impacting programs like 911, Read to Achieve and immunizations.
Sen. Paul Newton, on hand at Thursday’s committee to defend Senate changes to the original bill and push for a House vote next week, had a simple response to that.
“I think there are a lot of mothers and fathers who would like us to take a look at immunizations,” Newton said, eliciting some muted snickers from the public gathered in the room.
Newton told the committee he believes that agencies in the state have too much power and are enforcing too many regulations that are burdensome to people and businesses.
“We believe that elected representatives should shoulder the burden and give an up or down vote on regulations,” Newton said.
Getting lawmakers more intimately involved in the making of regulations and how they’re implemented would cut down on the number of unnecessary regulations and could be handled through “common sense” discussions, Newton said.
More than a few of the assembled committee’s members – Republican and Democrat – seemed skeptical of that.
“People come to my office all the time – they hire lobbyists,” said Rep. Nelson Dollar (R-Wake). “I don’t think the needs of industries aren’t being brought to the General Assembly.”
It is the job of lawmakers to make policy, Dollar said – and the job of agencies and their heads to implement them. Dollar said he isn’t comfortable with the idea of the legislature getting into the “granular” part of regulation.
“I don’t get how we’re going to have time, as a part-time legislature, unless we’re going to be full-time, to look at all this,” Dollar said. “Unless we’re going to pass it over to the staff – and does the staff have the expertise for that?”
If there is a problem with some regulation, Dollar said, this General Assembly has been very willing to pass technical correction bills, to handle the problems through passing new laws or correcting existing ones. That is a better way to handle any problems with regulation than the “blunt instrument” of a bill like HB 162, he said.
Rep. John Blust (R-Guilford) was one of the committee’s voices of unreserved enthusiasm for the current version of the bill.
“Should there be executive agencies out there enacting things that cost more than $100 million and the one legislative body people can hold accountable doesn’t get the final say on things?” Blust said. “I think something like this is necessary to get back to our constitutional balance.”
The state constitution vests lawmaking power in the General Assembly, Blust said, and lawmakers shouldn’t “punt” the details to agencies.
But concerns over the bill didn’t begin and end with that $100 million figure.
The bill would also prevent the agencies from adopting permanent rules that are more strict that the federal government’s – even in the case of “serious and unforeseen threats.”
Brooks Rainey Pearson, an associate attorney with the Southern Environmental Law Center, said there’s an obvious example of the problem with that: the GenX drinking water crisis. 
Just two floors above Thursday’s committee meeting in the Legislative Office Building, lawmakers were meeting on the GenX problem – a crisis for the state involving drinking water tainted by a chemical for which the EPA does not even set a maximum allowable level. In one crisis, Pearson said, you see a situation wherein it might be crucial for the Department of Environmental Quality to be able to set its own limits on the allowable amount of the chemical and potentially save lives with quick action – something that could easily cost more than $100 million, given the scope of the problem.
“When a situation like GenX happens, it would handcuff the agencies’ ability to respond to it,” Pearson said. “So two floors up right now you have a meeting about how to respond to this huge crisis, and in this room you have a meeting about whether to handcuff the agency that is dealing with that even further.”
Given the number of unanswered questions about that and other parts of the bill, Pearson said, it did not seem ripe for a vote.
Rep. Craig Horn (R-Union) agreed.
Based on the level of concern from House lawmakers, Horn said, he isn’t even sure how the bill got to the point where it may get a vote next week.
“I’m certainly not prepared to take this up, particularly at this time, from a vote standpoint. I’m not and I don’t think we are,” Horn said.
Horn said he was “confused” as to how a bill with so many unanswered questions and about which so many people have what appear to be valid concerns got this far.
“You’re not confused,” said Rep. Jonathan Jordan (R-Ashe), the committee chair. “You’ve run into this many times before when one chamber wants something…”
The implication: the Senate is pushing for a vote, despite voiced concerns from the House.
Whether those concerns could be assuaged or enough changes made to the bill for it to pass the House was anybody’s guess.
“It’s a priority of leadership, so we’re going to find the time to figure it out,” Jordan said. “I just can’t yet see what the resolution will be.”
“I think next week is going to be very interesting,” Stevens said. “That’s all I’ll say.”