GOP opposition to proposed Wolf regs on carbon pricing; charter schools could shape coming months
In a statement, the Wolf administration said that ‘promulgating regulations is the appropriate avenue for the executive branch to move things forward, since the governor cannot introduce legislation’
Pennsylvania Governor Tom Wolf speaking with the press. Governor Tom Wolf visited Pine Grove Furnace State Park in Cumberland County Friday, July 31, 2021 to highlight the importance of outdoor spaces to our well-being during the pandemic and announce a plan for Pennsylvania’s state parks of tomorrow (Commonwealth Media Services photo).
(*This article was updated at 3:30 p.m. on Thursday, 4/7/22 to correctly reflect when the state’s regulatory review law passed)
Gov. Tom Wolf has frequently reached for executive action in the closing months of his administration to make progress on some of his top issues, from health care and climate change to charter schools and wages.
The Independent Regulatory Review Commission — a critical but usually obscure state board that votes to approve or disapprove final regulations — has backed three Wolf proposals related to those issues, ones that he has long sought to reform as governor.
And with more proposals on nursing home staffing in the works, legislative Republicans argue that he is circumventing the legislative process before leaving office in January 2023.
“I understand that the administration, whoever’s in that office, and the Legislature may have different priorities,” House Speaker Bryan Cutler, R-Lancaster, said. “But you shouldn’t abuse a process in order to get there.”
In a 3-2 vote last fall, the five-member commission approved the Regional Greenhouse Gas Initiative, or RGGI. The interstate climate initiative, widely opposed by Republicans in the GOP-controlled Legislature, requires electricity generators to pay for carbon emissions.
Wolf, who has long called for charter school reform and a raise to the minimum wage, celebrated the commission’s decision, pushing back against accusations from Republicans by telling the commission the regulations are not outside of its jurisdiction.
The final regulations for charter schools implement standards for the application process and enrollment practices. The proposal also clarifies ethics guidelines for charter school officials.
Finally, the Department of Health is working on a package of proposed regulations related to skilled nursing facility care, including increasing the number of hours caretakers must spend with residents, expanding the information required for licensure applicants, increasing facility assessments, and adding to the list of reportable diseases.
The Legislature still has recourse to challenge these proposals. The standing committees overseeing a particular policy area, such as education or energy, have 14 calendar days from when either committee receives a letter of approval from the commission to issue a concurrent resolution on the regulations.
After the committee reports a concurrent resolution, the House and Senate have 30 days or 10 legislative days, whichever is later, to pass the concurrent resolution. If that resolution passes, however, Wolf may veto it, keeping the regulation in place.
A spokesperson for Senate Majority Leader Kim Ward, R-Westmoreland, told the Capital-Star that “using the regulatory process to bypass the Legislature is a tactic that has been used time and time again by Democrats to advance their progressive agenda.”
“Pennsylvanians have already spoken on this matter when they overwhelmingly voted in favor of a constitution amendment to resist executive branch governing,” the statement said. “Pennsylvanians prefer less costly regulations and more working together to manage through issues that affect the economic mobility, health, and education of their families.”
Ward’s office did not answer whether there are plans in the Senate to challenge the commission’s decisions.
Effectively, however, the Legislature can only block a regulation by building a two-thirds majority. With the backing of traditional Democratic allies in the trade unions, the Legislature has come close to blocking RGGI, but still has fallen short. In fact, Wolf has never had a veto overridden during his entire tenure.
Taken as a whole, Cutler argued this means the regulatory process is skewed in favor of the governor’s office. Wolf, he added, was avoiding the legislative process to avoid engaging with the Legislature.
The two sides have had a frosty relationship in recent years, particularly since the start of the COVID-19 pandemic.
“The legislative process, as frustrating as it can be, is, in fact, a reflection of the people,” Cutler said. “And it also is designed so that good or bad things don’t happen quickly.”
David Hess, a former Republican Senate staffer and cabinet official under Gov. Mark Schweiker, disputed Cutler’s charge of an executive bias in the regulatory process.
Proposed regulations, noted Hess, are only taking effect after years of development. The state’s regulatory process, laid out in a 1982 law, requires that regulatory agencies bounce ideas off of internal committees and hear public comment at multiple points through the process.
For instance, Wolf first proposed RGGI in the fall of 2019. Even now, it still hasn’t been implemented amid legislative, legal and public relations fights over its legality and implications.
That comment period also includes review from both the House and Senate standing committee with oversight of the given policy area.
To Hess, it comes down to “ how many bites at the apple does the General Assembly want?”
“They could pass a law and override the governor’s veto,” Hess said. “That’s how checks and balances have worked for hundreds of years. But it seems like Republicans want to make sure they get the final and last say on everything.”
In a statement, the Wolf administration said that “promulgating regulations is the appropriate avenue for the executive branch to move things forward, since the governor cannot introduce legislation.”
These regulations must be consistent with, and are implemented under, laws that already passed the General Assembly, the administration added, and provide a way to make transparent, impactful change to Pennsylvanians.”
In the meantime, Republican lawmakers are focusing on structural changes to prevent any other future governor from following Wolf’s lead on executive actions.
On Wednesday, for instance, a constitutional change to limit the governor’s executive powers advanced out of a Senate committee in a party-line vote — the first step in the lengthy and costly process needed before a ballot question can reach voters.
Constitutional amendments, which the governor cannot veto, must pass the General Assembly in two consecutive sessions and be publicly advertised by the Department of State before making it onto the ballot.
Introduced by Sen. Scott Martin, R-Lancaster, the proposed change, if approved by voters, would amend the constitution to state that when a disaster declaration from the governor expires, so do emergency orders issued by a secretary or state agency under the executive branch’s jurisdiction.
This proposal, prompted by backlash over pandemic mitigation efforts, comes after voters approved a GOP-backed constitutional amendment to curtail Wolf’s — and future governors — use of emergency powers. With the change, a governor’s disaster declaration lasts 21 days unless the Legislature, currently controlled by Republicans, grants an extension.
Despite the constitutional change last year, the Pennsylvania Department of Health still enacted a K-12 school mandate in August, citing powers issued under a 1929 law establishing the Health Department and a 1955 law on infectious disease control. The Pennsylvania Supreme Court later ruled against the order.
Martin said the proposed amendment is a “cleanup” to the process approved by voters last year.
“What this amendment does is creates the restraint on agencies that you cannot bypass the emergency declaration process and makeup extraordinary powers that aren’t described in law outside of the process because the process exists,” Martin said.
Sen. Sharif Street, D-Philadelphia, cited the Supreme Court ruling as precedent and called the proposal “a solution in search of a problem.”
Cutler has also introduced constitutional amendments to restrict the scope and length of executive orders and to allow the General Assembly to block a proposed regulation with a simple majority rather than with a two-thirds majority.
But a final variable is that Wolf’s regulatory push is just another piece of the state’s budget puzzle. For instance, the Wolf administration pushed forward a regulation in his second term to expand the number of workers who qualify for overtime pay.
The regulation was opposed by business groups, who convinced Senate Republicans to cut a deal: They’d pass a small minimum wage increase if Wolf pulled the regulation. It passed the upper chamber in fall 2019, but House Republicans didn’t bite.
Wolf would agree to drop the regulation for good in the 2021 budget as part of his effort to get more education funding for the poorest school districts. Organized labor was not happy.
With the state now entering another round of budget negotiations, these same rules could become a bargaining chip as Wolf and the General Assembly negotiate a new deal.
“Do I think that there’s a leverage aspect of some of his maneuvering? Probably,” Cutler said. “But ultimately, I think the cleanest way to ensure a good product for citizens is to make sure you involve the Legislature because that’s who we represent.”
But Hess added that overall, particularly on RGGI, he thought the issue was that neither side — Wolf or the Legislature — really wanted to negotiate a policy outcome. Instead, he thought both sides saw political gain from taking a hard line and not backing down.
“They talked past each other for so long,” Hess said. “It gets frustrating for those who want to see some solutions on this issue.”