Tue February 11, 2014
On the Kentucky Legislature's Proposed Constitutional Amendment and Environmental Regulations
A bill moving through the Kentucky General Assembly would place a measure on the ballot to allow legislators to overturn executive branch actions. And if the measure ever becomes law, it could have an effect on Kentucky’s environmental laws.
The bill would subject all executive and administrative actions to a committee, allowing a group of legislators to veto regulations they don’t like. It was proposed in response to Kentucky’s new Common Core standards and the expansion of the Affordable Care Act, but if it becomes law has the potential to affect every area of government.
The federal government delegates several environmental programs to Kentucky—like hazardous waste and coal mining—and sets minimum requirements. So if the state failed to implement necessary regulatory changes, the federal government could take control of the program. But Tom FitzGerald of the Kentucky Resources Council says the bill could still be problematic for the environment.
“It certainly could have a dampening effect on the ability, or the willingness of different agencies, including the Environmental Protection Cabinet to move forward with state-led programs where there is no corresponding federal mandate,” he says.
Essentially, the bill would return Kentucky to 1982. From 1982 to 1984, the Legislative Research Commission had the power to veto executive body actions. But that provision was overturned by the Kentucky Supreme Court in 1984 in Legislative Research Commission ex rel. Prather v. Brown.
The Supreme Court held that implementation of certain statutory action of the 1982 General Assembly would violate the constitutional principle of separation of powers. These statutes empowered LRC to act as the legislature when the legislature was not in session. The court also noted that a portion of the legislative membership—LRC—was attempting to act for the entire body.
The court strictly interpreted the separation of powers clause of Sections 27 and 28 when it cited the constitutional limitation on the duration of legislative sessions and the requirement that the legislature consist of two chambers. Thus, any type of legislative action, whether undertaken by the full body, or by the LRC on behalf of the General Assembly, was prohibited.
FitzGerald and the Kentucky Resources Council have come out against the bill. Besides being potentially damaging, FitzGerald argues it’s unnecessary. Between 2005 and 2013, he says 4100 regulations were reviewed, and only 16 were found to be deficient.
“The underlying premise is a flawed premise,” he says. “There’s nothing regular about these situations where a committee of the General Assembly finds a regulation to be deficient. And in these rare instances in which they do, that’s what the courts are for.”
FitzGerald remembers reading statewide air pollution regulations, and wondering why they applied to every Kentucky county except Pulaski.
“And I thought about it for a minute and realized the reason there was an exemption for Pulaski County was because one of the members of the committee during the time that regulation went through the process was from Pulaski County,” he says.
Energy and Environment Cabinet spokesman Dick Brown declined comment on the measure, but reiterated a previous statement from Governor Beshear about the bill:
"It is the responsibility of the Governor, a statewide elected official, to issue regulations to implement laws passed by the General Assembly and to run the day-to-day operations of Kentucky State Government. The legislature already has the power to overturn any regulation issued by the Executive Branch by passing legislation while they are in session. The last thing the people of this state want is for a small group of legislators elected by a small number of voters to have the authority to meddle in the day-to-day operations of government. Delegating that legislative authority to a small group of legislators to exercise at any time would seriously impede the Governor’s responsibility to run government on a day to day basis."
The bill has already passed the Senate, but is opposed by many Democrats, and that party controls the House. A similar constitutional amendment went to Kentucky voters in 1990, but was defeated.