September 18, 2019
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LePage issues executive order restricting agencies from adopting new rules

AUGUSTA, Maine — Gov. Paul LePage issued an executive order on Wednesday that requires his office to sign off on any proposed rule changes offered by state agencies both before and after they go out to the public.

The order indicates the governor’s push for a “unified, comprehensive rule making oversight policy,” that reflects “the intent of the Legislature and the goals of the executive.”

“When the Legislature passes a law, it explicitly delegates rule making authority to the executive,” explained Michael Cianchette, deputy counsel to the governor. “Often, the guidelines and policy in statute allow a lot of leeway on what the rules say.

“This executive order just ensures that, within those statutory bounds, rules reflect the administration’s policies of job creation and red tape reduction.”

Some, however, said the order represents an overreach by the governor’s office to control the rule making process and make it harder for any future rule changes to occur.

“I think there is always concern when an executive order usurps the legislative process and the separation of powers,” said Sen. Seth Goodall, D-Richmond. “This certainly makes it seem as though the governor is going to have a bigger role in any rule changes.”

“This obviously concentrates greater control within the governor’s office; to what end I’m not sure,” added Sean Mahoney, vice president of the Conservation Law Foundation. “The concern is about about who’s going to have input in the governor’s review. Who would be advising the governor’s office on these rules?”

Cianchette said the governor still would work with commissioners and department staff, as well as his own policy advisers on any rule changes. Based on state statute, a public hearing is required before the adoption of any rule and that will not change.

“However, the rules of one department may affect another and this executive order will ensure that another set of eyes are put on any proposed rules and that the administration is moving forward in tandem and with one voice,” Cianchette said.

For instance, the DEP is considering a rule change to limit the amount of noise produced by wind turbines in the overnight hours. That rule now must go to the governor’s office for approval.

Scott Fish, spokesman for Maine Senate President Kevin Raye, Perry, said his boss did not see any cause for alarm with the governor’s order.

Similarly, Jim Cyr, a spokesman for House Speaker Robert Nutting of Oakland, said the governor was well within his authority with this executive order.

Goodall said he had no problem with the first section of the order, which sets out criteria for state agencies to consider when drafting new rules. Among those criteria are assessing the effect of any proposed rule on job creation and considering the burden imposed by any fees attached to any rule.

Instead, Goodall’s concern was whether the governor is creating a situation in which new

rules or rule changes will be harder to pass. Mahoney agreed that, at best, the executive order is an inefficient way to govern, but, at worst, its a deliberate attempt to ensure that no more unnecessary rules are passed.

“For all regulations, no matter how big or small, to have to go through the governor’s office, it will certainly slow down and complicate that process,” he said.

Gov. LePage has not made it a secret that he believes there is too much government and too much regulatory oversight in Maine and burdensome laws are hurting business. Among his first initiatives upon taking office was LD 1, a law that streamlines the state’s regulatory process.

Democrats and environmentalists worked to soften LD 1 amid concerns that some of its elements were anti-environment at the expense of being pro-business.

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