After sending out my first tweet soliciting requests for legislation to analyze, I got this response from @UtahTeacher:
As I looked over S.B. 11, I realized that it was a close companion of the much longer (~6,000 lines!) S.B. 21. So, I decided to analyze them together. Here goes! (By the way, if anyone has another piece of proposed legislation they’d like analyzed from a legal perspective, let me know on twitter @curtbentley, or by email.)
Both S.B. 11 and S.B. 21 are proposed by Senator Margaret Dayton, and are the two component parts of an effort to redefine the responsibilities of the boards that currently oversee divisions of the Utah Department of Environmental Quality (“DEQ”). S.B. 21 redefines the responsibilities of boards, primarily limiting them and giving more responsibilities to division directors appointed by the DEQ director, while S.B. 11 creates a specific process for challenging DEQ permit decisions that’s placed exclusively in the hands of the division directors and administrative law judges, rather than the boards themselves.
Although @UtahTeacher was clearly concerned about the effect that these bills might have on the right to bring environmental-related lawsuits, I could find nothing in the bills that either limited standing to the traditional test (personal injury in fact, causation, redressable) or in any way effected the existing rights of individuals or organizations to bring an environmental challenge in court. Rather, these bills seem exclusively focused on redefining administrative responsibilities — which may also be very significant, though I’ll be frank and admit that I lack to background to make much of an intelligent assessment.
With that brief introduction out of the way, I’ll dive right in. Advance warning — this isn’t the most exciting stuff in the world
S.B. 21: Department of Environmental Quality Board Revisions
S.B. 21 would directly affect the following divisions within the DEQ: (1) the Division of Air Quality, (2) the Division of Radiation Control, (3) the Division of Drinking Water, (4) the Division of Water Quality, and (5) the Division of Solid and Hazardous Waste.
Currently, each of the above divisions is governed primarily by a board, comprising anywhere from 11 (air quality, drinking water, and water quality) to 13 (radiation control, and solid and hazardous waste) members. The members of each board are currently appointed by the governor and confirmed by the senate.
So far as I can tell, current law requires (for each of the above boards) that:
- No more than 5 members of the board belong to the same political party (a bit hard to see how this happens when the boards all currently have 11 or 13 members);
- A majority of the board members cannot derive a significant part of their income from individuals or businesses subject to permits issued by the board they serve upon; and
- That board members disclose any potential conflicts of interest.
Currently, the law assigns to the boards themselves substantially responsibility for administering the various divisions. For example, the boards themselves are responsible for:
- Setting environmental standards germane to the subject matter of their board;
- Holding hearings and making decisions on dispositive motions;
- Preparing and developing comprehensive plan;
- Accepting, receiving, and administering grants;
- Enter into contracts on behalf of the division with third parties; and
- Much more.
Under current law, the various board are assisted in their responsibilities by an executive secretary for each division, who is appointed by the executive director of the DEQ, but is subject to approval by the various boards themselves.
S.B. 21 makes some significant changes to the administrative structure. First, board members would be nominated by the executive director of the DEQ, and subsequently appointed by the governor and confirmed by the senate (whereas now they are simply directly appointed by the governor and confirmed by the senate). Second, the number of board members would be reduced to 9 in each case (I assume to make realistic the idea that only 5 members of the board can be from the same political party; also perhaps for cost savings). Third, the boards’ authority and responsibilities would be significantly reduced in a number of ways. Here are some examples:
- Under S.B. 21, the boards’ authority to hold hearings would be limited to non-adjudicative hearings only (i.e., not hearings in any case where a decision will be made affecting a person’s rights);
- Under S.B. 21, the boards would no longer be allowed to directly contract with third parties to provide services to the board’s division;
- Under S.B. 21, the boards would no longer be tasked with preparing comprehensive plans or implementing such a plan.
In short, under S.B. 21, most of the duties previously assigned to the board are now assigned to division “directors,” which are appointed by the executive director of DEQ without any input from the board, and the boards would be little more than rulemaking and standard-developing bodies. It seems very much like a legislative/executive division of power within an executive department. I should note, however, that S.B. 21 would specifically assign to the boards one new duty: the responsibility and authority to review any settlement entered into by a division director exceeding $25,000 — we can only assume this is designed to avoid another UDOT-gate like we saw back in 2010 (though this law obviously doesn’t apply to UDOT).
S.B. 11 is the second component to the wide-scale reorganization proposed by Senator Dayton, so I’ll turn to it now.
S.B. 11: Department of Environmental Quality Adjudicative Proceedings
Currently, the boards of the various divisions within DEQ respond directly to all “requests for agency action.” (i.e., public requests to approve permits or take other actions). S.B. 11, consistent with S.B. 21, would remove that responsibility from the board and assign it to the division directors in almost all cases. Specifically, the board would no longer make decisions on requests for agency action to approve, renew, deny, modify, or revoke a permit, plan, license, approval order, or administrative authorization — this category of cases is referred to in the proposed bill as “permit review proceedings.”
Although I readily acknowledge a near total lack of expertise in this area, “permit review proceedings” seem to pretty much cover the whole ground of adjudicative actions taken by each division. In other words, S.B. 11 would seem to effect a near total transfer of adjudicative responsibilities from the board to the division director. And this would be consistent with S.B. 21, which seems to basically limit the board’s authority to hold hearings to non-adjudicative (i.e., informational/rulemaking) cases. There are two caveats to this transfer. First, it does appear that, under S.B. 11, the boards’ adjudicative authority would remain intact for requests for agency action not involving a “permit review proceeding” . . . but again, there just doesn’t seem to be much there aside left after that carveout except petition for rulemaking and new standards. Second, the board has the authority (and obligation) to approve of disprove any settlement negotiated by the division director that exceeds $25,000.
Finally, it’s worth noting that S.B. 11 would create some unique standards for administrative review of permit proceedings, including strictly limiting who could appear before the agency in such a proceedings (only the person seeking a permit review decision, the person directly affected by the permit review decision, and a person specifically authorized by the agency to intervene) as well as what issues could be raised in a permit review proceeding (only those issues reflected in the record and properly preserved in proceedings below). It would also give jurisdiction over appeals from permit review proceedings directly to the court of appeals. But, significant as those changes are, they’re not the focus of the bill (at least in my opinion). And again, from what I can tell, they do nothing to affect the existing ability of parties to directly bring judicial actions related to environmental concerns in district court.
I don’t really know what to say about S.B. 21 and S.B. 11 aside from tell you what they appear to do. I don’t have enough experience in administrative law to say whether transferring authority and responsibilities away from boards is a good thing or not. But it does appear to be a significant change and, for that reason, should get some careful consideration.