Sustained Outrage

New report questions W.Va. rulemaking process

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A new report out this morning raises some interesting questions about the way West Virginia writes rules and regulations to govern everything from coal mining pollution to drug company marketing expenditures.

The discussion of West Virginia rulemaking is part of a broader, national examination of rulemaking in states around the country. The report, 52 Experiments with Regulatory Review: The Political and Economic Inputs into State Rulemakings, was put together by the New Y0rk University School of Law’s Institute for Policy Integrity.

Regarding West Virginia’s rulemaking procedures, the report concludes:

West Virginia’s regulatory review scheme concentrates virtually all regulatory power in the hands of the Legislature. While the arrangement is designed to ensure that regulatory decisions are made by democratically accountable legislators, the system often seems to take regulatory power away from independent agencies experts and exposes the rulemaking process to political influence.

The report cites several examples from the work of the Joint Legislative Rulemaking Review Committee:

— In 2001, the LRMRC abandoned a rule about water purity that had been carefully negotiated by industry, environmental and agency representatives, and instead substituted a rule drafted by industry groups like the state’s Chamber of Commerce and the West Virginia Coal Association.

— In 2008, the state Ethics Commission proposed restrictions on how law enforcement associations like the Fraternal Order of Police could raise money. The LRMRC voted to adopt instead amendments written by a regulated party, the West Virginia Troopers Association.

— … When the LRMRC considered rules that would require pharmaceutical companies to disclose their marketing expenditures, PhRMA exerted influence to delay and then scuttle the rule.

The report concluded:

By keeping most regulatory power with the Legislature, West Virginia may ensure greater democratic accountability, but the state risks exposing the regulatory process to politics. The state has no significant requirement for cost-benefit analysis, so regulatory decisions are often made in a vacuum, with much of the information (and sometimes even the regulation itself) coming from lobbyists.