Gregoire's Executive Order, Huh?

Governor Gregoire’s new executive order must set a record for lack of clarity. I’m a professional policy researcher with advanced degrees in philosophy. I can parse words. And yet I can’t make any sense of this thing. It’s like reading Heidegger.

The press release says that it “suspends state rule making processes.” (Rule making is the process by which state agencies promulgate regulations or enacted laws.) Because:

“…in these unprecedented economic times, this action will provide businesses with stability and predictability they need to help with our state’s recovery,” Gregoire said. 

Stability and predictability? Really? More like bureaucratic chaos.

The order and “implementation” document are simply bizarre. Here’s what they say. The governor is by fiat suspending “non-critical” rule making which includes, we’re told, any rule that doesn’t meet any of the following criteria: 1) required by federal or state law; 2) required to maintain federally delegated or authorized programs; 3) required by court order; 4) necessary to manage budget shortfalls; 5) necessary to maintain fund solvency; 6) necessary for revenue generating activities; 7) necessary to protect public health; 8) necessary to protect public safety; 9) necessary to protect public welfare; 10) necessary to avoid an immediate threat to the state’s natural resources; 11) beneficial to (or requested or supported by) the regulated entities; 12) beneficial to (or requested or supported by) local governments, or 13) beneficial to (or requested or supported by) the small businesses it affects.

Say, what? But hang on, it gets even more unclear.

Even if a rule doesn’t meet one of those criteria, it’s not automatically suspended because the second part of the order directs the state’s Office of Financial Management “to publish guidelines identifying circumstances in which rule making may proceed.”

Oh, well, as long as we’ll soon have “guidelines identifying circumstances” then everything should be clear. As mud.

Actually, I’m making it sound too simple. In fact, the governor’s office’s “clarification” further stipulates that agencies may go ahead and adopt rules “that have been the subject of negotiated rule making.” Also, they may adopt “pilot rule making” that had “substantial participation” from “interested parties.” Oh, and of course they are allowed to “finalize permanent rule making that has been previously covered by emergency rules.” And, finally, agencies can continue with rule making that affects only internal government procedure.  

If you want my opinion, the whole thing is a muddle. There’s no identifiable content in it. In fact, this order creates less certainty than the status quo. And it doesn’t save the state much money, because rulemaking is among the cheapest functions the state performs. The only real consequence is to increase uncertainty, and kick open the door for lobbyists who might like to alter state regulations.

Sightline staff are now looking high and low for rulemaking that won’t meet any of these exceptions. Would it be toxins in baby bottles and kids’ toys? What agency head is going to decide that’s not important for health or welfare? Is it going to be noxious species hitchhiking in the ballast water of ocean-going freighters? Or does it mean nothing at all? Stay tuned. 

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Update 11/18/10: Please read Clark’s follow-up piece, which analyzes the EO’s effects more closely. The upshot? It’s a nothingburger.