“Measure would void new North Dakota flaring, oil rules,” screams a headline from the Associated Press about Rep. Keith Kempenich’s bill to change the process by which oil regulations are passed by 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, though, would have read something like this: “Legislature seeks more say over oil and gas regulations.”
To understand what’s going on, we need to dig a little deeper than the headline. Rep. Kempenich’s efforts aren’t so much about any specific regulation but about how those regulations are passed.
In short, 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 House Bill 1187, which simply requires that regulations passed by the Industrial Commission go to the Legislature’s Administrative Rules committee for approval as well (which is an already-established process for most regulation in North Dakota):
Orders of general applicability void.
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 30, 2014, are void.
Kempenich has a companion bill to this – House Bill 1179 – 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.
The fact that North Dakota lawmakers get some control over regulations pushed by the executive branch is a good thing. A feature, not a bug, in our state government. I can’t speak to why that oversight doesn’t currently extend to oil and gas regulation, but there’s nothing wrong with expanding the oversight.
It’s a departure from the federal government, where President Barack Obama has served of late as a shining example of the sort of mischief which can take place if the executive branch of government is given too much autonomy over regulations.
And 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 step of legislative review.
The process by which policy is established is often as important as the policy itself.
The effective date of HB1187 is January 1st of 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.