Evergreen Freedom Foundation Policy Highlighter - Volume 12, Number 10

7/3/02

The state of Washington's regulatory climate is best summed up by Governor Gary Locke's Competitiveness Council:

The current regulatory structure unnecessarily delays projects, increases project cost, creates unnecessary uncertainty, reduces operating flexibility, and increases barriers to business growth. It stirs hostility toward government. It wastes resources, increasing government costs. It leads to angry applicants and it encourages project opponents to manipulate the permitting system.

Despite the governor's previous efforts to rein in the rule-making propensity of the state's agencies, more than 3,500 rules have been adopted since 1996 — an increase of more than 38,118 pages of new or revised regulations Washington businesses and citizens must maneuver through. Since 1996, agencies have averaged 589 new or revised rules per year. That's an average of 6,353 pages each year or just under eleven pages per rule.

Washington agencies' rule-making activity

Source: Code Reviser's Office: "Agency Rule Making Activity: Table 1"

There have been some recent efforts to address the regulatory problems in the state. House Bill 2671 created a permit assistance center in the Office of Financial Management to aid businesses in understanding the permits required of them. House Bill 2049 created a buffer zone so businesses would have "a reasonable period of time to correct violations during a technical assistance visit before any civil penalty provided for by law is imposed for those violations." Essentially this allows businesses the opportunity to learn of the new regulations imposed upon them before they face penalties for violation of the new rules.

Unfortunately, these efforts have been followed by Governor Locke's decision to ignore the recommendation of his own Competitiveness Council that he delay the implementation of Labor & Industries' new extensive ergonomic rules.

"There is fear in some industries that these new rules might require costly investments in new equipment, ergonomic consultants, and detailed studies. I believe these fears are unfounded. However, as the national leader it is incumbent upon us to proceed carefully." - Governor Locke (3/5/02 press release)

What is telling in the governor's defense of the new ergonomic rules is that Washington is the only state in the nation imposing them. The federal government has already abandoned earlier attempts to enforce federal ergonomic standards. Governor Locke did ultimately decide to delay any penalties for violation of the new ergonomic rules until July 2004 to alleviate the impact of his decision.

The ergonomics rules are the subject of a current lawsuit in Thurston County Superior Court. A coalition of businesses is trying to have the rules invalidated on the grounds that "among other challenges: that the rule has exceeded its statutory authority; that the rule relies on inadequate medical and scientific data; that the cost benefit analysis is flawed; and that the agency (L&I) has failed to coordinate the rule with other laws."

Both Governor Locke and former Governor Mike Lowry have issued Executive Orders (93-06 in 1993 & 97-02 in 1996) to address the regulatory burden in Washington. Both times the Executive Orders resulted in a decrease in the number of existing regulatory pages. Unfortunately, nothing has prevented the adoption of new regulations in the state's agencies.

To fully address and gain control over the regulatory nature of the state's agencies it may be useful to take a page from New York Governor George Pataki's success in tackling his state's regulatory structure.

With New York facing a growing regulatory burden due to the essentially unchecked rule-making authority of state agencies, Governor Pataki created the Governor's Office of Regulatory Reform (GORR). Now, all proposed agency rules must comply with eleven GORR criteria prior to approval and a GORR review after implementation.

Washington needs the same kind of reforms. EFF proposes that all agency rules be signed by the governor just as all legislation must receive the approval of the executive branch. This would ensure more public discourse of new rules and provide a mechanism for direct accountability to citizens for all new rules implemented. Along with the governor's signature, EFF suggests that all agency rules be subject to a six-year sunset review.

The restoration of Washington's business climate is dependent upon resolving the state's regulatory burden. This must remain a primary focus of the state's elected officials and agency heads.