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Legislators, stick to policy, not rules

Jack Betts
Jack Betts writes on politics and life in The Carolinas for the Charlotte Observer's Editorial page.

RALEIGH Fountain Odom was fuming one day in 1997 about the General Assembly's ability to do its own business.

Fountain, then a state senator from Mecklenburg, chair of the Base Budget Committee and later cochair of the powerful Appropriations Committee, was wound up about what he saw as the legislature's creating more work for itself at a time when it ought to concentrate on policy.

Odom wanted to streamline a two-year-old law that empowered an obscure state agency, the Rules Review Commission, to delay or derail the work of state regulatory agencies that might have taken years to produce. He wanted to get the legislature out of the business of micromanaging the writing of the regulatory rules that implement complicated state laws.

Otherwise, he said, lawmakers only created more work for themselves, rewriting and compromising the work of such agencies as the N.C. Environmental Management Commission (EMS) and the N.C. Coastal Resources Commission.

“What we are doing is enacting rules by legislation now, and that's a problem,” he said. “These are things that ought to be handled in rule-making, not by legislation.” One result, he went on, was the development of 250-page state budgets chock full of special provisions.

Odom's fears were well-founded. In recent years, the Environmental Management Commission has developed rules dealing with stormwater runoff, designed to prevent further degradation of drinking water and slow the contamination of shellfish beds and swimming areas with fecal bacteria. Those rules were required in part because of federal law mandating stormwater control.

And in three cases, legislative committees and stakeholder groups have redone the work of the EMC, spending many hundreds of hours reviewing technical data, consulting with special interests and public advocates and debating and devising new rules that now are written into state statutes. Just last week the Senate approved new coastal stormwater rules replacing ineffective regulations adopted 20 years ago to slow the contamination of coastal area water.

The N.C. Environmental Management Commission had devised the rules over more than two years. But when the rules ran into flak from developers who found them too restrictive and counties that feared they would be hard to implement, the legislature took over the job.

As the Carolina Journal's Mitch Kokai reported Thursday, the legislature's assumption of the heavy lifting on environmental rules is changing the formula of state government. He quoted legislative staff member George Givens as saying, “As time has gone on, I think the practical effect of legislative review of rules is that the EMC has become an advisory body to the legislature, and in a real sense we're their final arbiters.” That might lead to a rethinking of the EMC's role, he added.

Some state officials have been rethinking that role for years. In 2003, UNC Wilmington professor Courtney Hackney, vice chairman of the N.C. Coastal Resources Commission, saw this day coming. “I'd rather we had no coastal management regulatory program, than have people think that we have an effective one in North Carolina.” Hackney believed the legislature's interference in rulemaking had led to a loss of confidence in environmental agencies and a decline in their effectiveness.

Before he left office in 2001, former Gov. Jim Hunt toyed with the idea of ditching the citizen-based, part-time regulatory commission such as the EMC and replacing it with a full-time professional environmental commission, similar to the full-time N.C. Utilities Commission, to hear cases and render decisions.

That alone wouldn't stop the legislature from stepping into issues and developing statutory approaches to matters that used to be handled by regulatory rules. But it might free up legislators to spend more time on broad policy issues – and less time redoing the work of agencies whose job it was supposed to have been all along.

Jack Betts is an Observer associate editor based in Raleigh: jbetts@charlotteobserver.com

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