“Measure would void new North Dakota flaring, oil rules,” screams a headline from the Associated Press about state Rep. Keith Kempenich’s bill to change the process by which oil regulations are passed by the the Industrial Commission.
That headline set up a scolding and typically intemperate editorial from the Fargo Forum, which as usual, seems to have only a superficial grasp of the matter at hand.
A fairer headline would have read something like this: “Legislature seeks more say over oil and gas regulations.”
The intent in this legislation isn’t to overturn any specific legislation, but rather to modify the process by which regulations are established.
To understand what’s going on, we need to dig a little deeper than the headline.
Kempenich wants to involve two branches of our state government in approving regulations for one of our most important industries. Here’s the key excerpt from HB1187, which simply requires that regulations passed by the Industrial Commission go to the Legislature’s Administrative Rules Committee for approval as well (an already-established process for administrative rule-making in North Dakota):
“Any rules of general applicability relating to matters within the authority of the industrial commission under title 38 which are made without the rulemaking procedures in chapter 28-32 and through an industrial commission order dated after June 30th 2014, are void.”
What this means, in plain English, is that the Industrial Commission must bring regulations to the Legislature for oversight.
Kempenich has a companion bill to this – HB1179 – which would also add the President of the Public Service Commission (currently Julie Fedorchak) and the Tax Commissioner (currently Ryan Rauschenberger) to the Industrial Commission which already includes the Governor (Jack Dalrymple), the Agriculture Commissioner (Doug Goehring) and the Attorney General (Wayne Stenehjem).
I’m less enthusiastic about HB1179. I’m not sure I see the need to water down the commission with additional members, but I think HB1187 is good policy.
That North Dakota lawmakers generally get some control over regulations pushed by the executive branch–by and through the Legislature’s Administrative Rules Committee–is a good thing. A feature, not a bug, in our state government.
That the oversight of the Administrative Rules Committees doesn’t currently extend into this area of oil and gas regulation is a problem in need of fixing.
As is so often the case, the federal government’s overbearing and very often politically-driven method of regulation is the guide for how not to do things.
President Barack Obama has served of late as a shining example of the sort of mischief that can take place if the executive branch of government is given too much autonomy over regulations. His incessant delays of the Keystone XL pipeline are just the latest chapter in his use of regulatory power to promote ideological intransigence.
Multiple members of North Dakota’s federal delegation, including former Rep. Rick Berg, current Rep. Kevin Cramer and Senator John Hoeven, have all backed legislation providing legislative oversight for federal executive branch regulation. The basis for their support of that national legislation is the North Dakota legislature’s check on regulatory power through the Administrative Rules Committee.
Supporting this extra oversight doesn’t have to mean you’re against the recent regulations targeting flaring and oil conditioning. One can support those policies while also believing they should have gone through the additional scrutiny of legislative review.
The process by which policy is established is often as important as the policy itself.
The effective date of HB1187 is Jan. 1, 2016, which gives the Industrial Commission plenty of time to submit their existing regulations to the Legislature for review. The executive branch will rattle their swords, looking unkindly as they do about oversight from other branches of government, but that’s exactly the reason why our system of government includes checks and balances.
