Topic:
ADMINISTRATIVE PROCEDURE; LEGISLATIVE COMMITTEES; LEGISLATIVE INTENT; STATUTES;
Location:
ADMINISTRATIVE PROCEDURE ACT; LEGISLATIVE COMMITTEES;

OLR Research Report


September 23, 2008

 

2008-R-0531

THE REGULATION REVIEW COMMITTEE

By: Mary M. Janicki, Director

You asked a series of questions, each of which we answer separately below, about the structure, authority, and procedures of the Legislative Regulation Review Committee (LRRC).

Generally, when the statutes and regulations conflict, which takes precedence?

Connecticut case law holds that when a statute and a regulation conflict, the statute must prevail (Commissioner of Administrative Services v. William Gerace, 40 Conn. App. 829, 673 A.2d 1172 (1996); citing Yanni v. DelPonte, 31 Conn. App. 350, 357, 624 A.2d 1175 (1993); see also Austin v. Housing Authority, 143 Conn. 338, 348-49, 122 A.2d 399 (1956)). Another more recent Connecticut Superior Court case reiterated the principle that a regulation cannot supplant the statute and “when a statute and a regulation conflict, the statute must prevail” (AFSCME Council 4, Local 1565 v. State of Connecticut/Department of Corrections, CV 04-0524924, November 15, 2005, decided; citing Med-Trans of Conn., Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 168, 699 A.2d 142 (1997)).

How did the Legislative Regulation Review Committee originate?

The current LRRC was established in 1971 under the Uniform Administrative Procedure Act (UAPA) (1971, PA 854). This was not, however, the first assertion of the General Assembly's authority to disapprove administrative regulations. As early as 1945, the secretary of the state was required to submit to each General Assembly all the regulations promulgated during the preceding biennium for its study (the legislature met biennially). Any regulation which the General Assembly disapproved was void and not reissued (CGSA, 1945 Supp., 42h).

In 1963, the first Interim Legislative Regulation Review Committee was established by statute (CGSA, 4-48a). This committee, which was bicameral and bipartisan, served as the model for the present committee. However, it met only during the interim and, following the original model, could only disapprove regulations that were already in force. Disapproval rendered the regulation void unless the full General Assembly reversed the committee's action during its next session. The legislature was not required to act on suspended regulations. Under the administrative regulation procedure in effect at the time, agencies followed rules and regulations of which the general public and the legal community were typically unaware.

What is the purpose of the LRRC? Is it required to ensure that regulations conform to and comply with the underlying law?

The committee's 2007 rules state its official purpose as follows:

The Legislative Regulation Review Committee was established to ensure a proper legislative review of proposed agency regulations, because administrative regulations have the force of law, a closer scrutiny and control by the legislative branch is clearly in the public interest to ensure that regulations do not contravene legislative intent.

Before 1971 when the current LRRC was established, there was concern over the content of regulations, the irregular methods by which they were issued, the absence of public input, the fact that up-to-date regulations were not available to the public or the legal community, and the lack of a well-defined procedure for adjudicating disputes over the way regulations were applied.

The UAPA addressed these concerns. It established the role of the Regulation Review Committee to:

1. assure that agencies issue required regulations promptly and

2. deter agency attempts to (a) circumvent legislative intent, (b) issue as regulations what the General Assembly has refused to enact into law, (c) misuse authority to issue emergency regulations under a simplified procedure, or (d) avoid the regulatory process by adopting “guidelines” or other policies detailing the application of law.

The legislative history of the law (sHB 5408, PA 854, 1971) establishing the current committee indicates how the General Assembly addressed some of these issues. Representative Neiditz, cochairperson of the Government Administration and Policy Committee, moved for passage in the House of Representatives on June 4, 1971. In the debate, he argued:

The General Assembly, as you know, has for years sought to maintain appropriate control over the acts of State agencies, which, on occasion, sought to change the impact of laws which we passed by passing regulations. … (House Proceedings, June 4, 1971, p. 4888).

Representative Pearson also noted that the law would give the Regulation Review Committee authority to compel otherwise unwilling state agencies to adopt regulations. Until that point, administrative procedures had been informal, inconsistent, and unpublished.

Why are there an equal number of majority and minority party members?

The LRRC is a statutory committee made up of eight members of the House of Representatives (four from each major party) and six senators (three from each major party). The committee members elect the two cochairpersons, one of whom must be a senator and the other a representative. By tradition, rather than law, one of the cochairpersons represents each political party.

Representative Neiditz explained the reasoning for the committee's composition.

It is not the purpose of this committee to be partisan. It's the purpose of this Committee to see that the legislative intent is carried out. And that it's also important that no regulation could become effective without approval of this Standing Committee (House Proceedings, June 4, 1971, p. 4889).

What is the extent of the committee's authority?

With respect to regulations, the committee must review and may hold public hearings on proposals. It may then approve, disapprove, or reject them without prejudice in whole or in part ( 4-170 (c)).

In 1976, the committee's disapproval of a regulation led to a lawsuit challenging the legislature's role on constitutional grounds alleging a breach of the separation of powers principle. The state Supreme Court in Maloney v. Pac (183 Conn. 313 (1981)) overturned a lower court decision (Maloney v. Pac et al. #20-6051 (1980)), which held that the LRRC's activity was unconstitutional. But the reversal was on technical grounds which left the issue of constitutionality unresolved until 1982 when a constitutional amendment approved by the General Assembly and the electorate became effective. Article XVIII of the amendments to the state constitution confirmed the legislature's authority to delegate regulatory authority and to consider and disapprove administrative regulations (Ct. Const. Art. II on the Distribution of Powers).

Can the LRRC amend a proposed regulation? Can it add provisions that are not authorized by or contradict the authorizing legislation?

No. The committee is not authorized to amend or add to regulations submitted by an agency. If the committee disapproves a regulation, the proposing agency may propose a substantively new regulation, using the same UAPA procedures ( 4-170(d)). (The law includes a process whereby disapproved regulations are submitted to the General Assembly, which can sustain or reverse the committee's ruling ( 4-171).)

If the committee rejects a proposed regulation without prejudice, it notifies the agency of its reasons and the agency (1) must resubmit a revised regulation within two months of the rejection if the regulations are required by law and (2) may resubmit regulations that are authorized but not required. In the resubmittal process, the agency need not republish its notice of intent in the Connecticut Law Journal, but must comply with other original procedural requirements, including submission to and review by the attorney general ( 4-170(e)).

With respect to the attorney general's role in the regulation review process,

Are both entities required to approve regulations?

Does the attorney general review and approve proposed regulations before the committee's consideration?

Can the attorney general overrule the committee's action and if so, how is that ruling implemented?

Yes, both the attorney general and the LRRC are required to approve regulations, but the attorney general's review occurs before the committee receives a proposed regulation.

The attorney general, or his designee, must approve any proposal for a new, amended, or repealed regulation. His approval is shown on the original copy of the regulation which the attorney general then submits to the LRRC.

The UAPA limits the attorney general's review to “a determination of the legal sufficiency” of the proposed regulation. The law defines “legal sufficiency” for purposes of this review to mean “(1) the absence of conflict with any general statute or regulation, federal law or regulation or the constitution of this state or of the United States, and (2) compliance with the notice and hearing requirements of Section 4-168” ( 4-169). The attorney general has 30 days to approve a regulation or give notice to the agency of any legal insufficiency.

Because the attorney general's review occurs before the committee's action, he does not overrule the committee. If the attorney general disapproves a regulation, it goes back to the proposing agency and never gets to the committee stage.

Has the committee rejected an attorney general's opinion?

Because of the nature of the process and the sequence of the steps described above, it seems that there is little likelihood that the committee can reject an attorney general's opinion with respect to a regulation. However, in a recent situation involving Department of Environmental Protection (DEP) regulations (the circumstances of which are detailed below) that is exactly what happened. The case involved “substitute pages” for inclusion in a regulation the committee was considering. The committee approved revised regulations with substitutions that the attorney general had ruled violated underlying statutory requirements. Because the substitute pages for resubmitted regulations were delivered to both the attorney general and the committee at around the same time, the attorney general's rejection did not preempt the committee's action. Despite the attorney general's ruling, the committee voted to approve the regulations as revised and with the substitute pages.

The DEP had submitted regulations on the “Control of Carbon Dioxide Emissions,” adopted pursuant to Section 22a- 200c which required DEP to adopt regulations to implement the Regional Greenhouse Gas Initiative (RGGI). RGGI is an interstate program to reduce gas emissions that contribute to global warming. The lengthy proposed regulations create an option for the state to participate in the first regional auction of carbon dioxide allowances, consistent with PA 07-242, An Act Concerning Electricity and Energy Efficiency. Those regulations, approved by the attorney general's office on May 1, 2008, were submitted on May 5 to the LRRC. The committee rejected them without prejudice on June 24.

The department resubmitted regulations on June 30. The attorney general's office approved them on July 1. They were included on the agenda for the committee's meeting on July 22. On July 7, the DEP commissioner submitted three substitute pages for inclusion in the revised regulations. The substitute language was intended to address concerns over the “possibility of unanticipated price impacts the proposed regulations may have on electric ratepayers.” The DEP change required a portion of the auction proceeds go to the Department of Public Utility Control for return to ratepayers.

The issue was then raised that the revised regulations included provisions that would divert part of the auction proceeds from the three purposes articulated in the 2007 act (energy conservations, load management, and renewable energy programs) to “rebates” on consumers' electric bills. On July 14, Attorney General Richard Blumenthal wrote to the DEP commissioner concluding that “this plan would conflict with statutory requirements authorizing Connecticut's participation in the RGGI.” His letter concluded:

I must reject as “legally insufficient” the “substitute pages” you have submitted as revisions to the RGGI regulations.

The LRRC met on July 22 to consider the resubmitted DEP regulations. According to the minutes of the committee meeting and the CT-N video record, it approved the regulations with the substitute pages and technical corrections. Before voting on the regulations, the committee discussed a point of order as to whether the substitute pages were properly before them, given Attorney General Blumenthal's conclusion. Members who supported consideration of the substitute did so on the grounds that the committee has an established precedent of voting on substitute pages without an attorney general's opinion or approval. Co-chair Senator Roraback ruled that the point of order was not well taken in order that the provisions included in the substitute pages could be considered on their merits. The meeting minutes reflect that:

[T]he regulation including the substitute pages, despite the Attorney General's indication that the substitute pages did not meet legal sufficiency, was properly before the committee….

The committee approved the regulations 7-6.

Is it possible to appeal the committee's decisions? If so, what is the process?

Once the LRRC approves a regulation (or fails to take any action within 65 days after it was submitted, which means it is deemed to have been approved), it becomes effective. The agency is responsible for filing it in the Office of the Secretary of the State. The secretary maintains a permanent registry and forwards a copy to the Commission on Official Legal Publications, which publishes all adopted regulations ( 4-172).

In the rare instance when the committee disapproves a regulation, there is another step in the process, though not exactly an appeal. By February 15 of each regular legislative session, the cochairpersons of the committee must give the General Assembly a copy of proposed regulations that LRRC rejected. The legislative leaders forward the regulations to the appropriate committee of cognizance for a hearing. The General Assembly has the authority to adopt a resolution that either sustains or reverses the LRRC's disapproval.

The application of a regulation can be appealed under provisions of the UAPA. If a regulation, or its threatened application, interferes with or threatens to impair the rights of a person, he or she may bring an action in Superior Court for a declaratory judgment to determine the validity or applicability of the regulation. The person must first exhaust his or her administrative remedies, however, by requesting a declaratory ruling from the agency ( 4-175).

Each agency is permitted, but not required, to issue declaratory rulings on the applicability of any statutory provision or of any of its regulations ( 4-176).

MJ:ts