Dear Senator:

RE:	Constitutionality of H.B. 1182 Currently Under Consideration by the Senate Committee on Natural Resources

         We have been asked by several state and local organizations to review H.B. 1182 to determine the validity of this bill under the Georgia Constitution and, further, whether it presents any problems with Georgia's ability to implement its federally delegated environmental programs. As a result, we have conducted a preliminary evaluation of H.B. 1182 in light of state and federal statutes and constitutional provisions that may impact its validity.

         After a review of the pertinent laws, we conclude that there are serious questions as to the constitutionality of the proposed bill under the doctrine of separation of powers. Under this doctrine, the legislative branch of government is responsible for creating law while the executive branch is responsible for implementing these laws, a duty that includes rulemaking. By interfering with the executive branch's performance of its duties, namely rulemaking, H.B. 1182 violates the separation of power between the executive and legislative branches. The bill presents additional constitutional concerns in that it allows the legislature to pass a resolution that has the force of law without presenting it to the governor for his signature, thus violating the presentment clause of the state constitution. In addition, we believe this bill may have a future impact on the validity of those federal environmental programs that have been delegated by the U.S. Environmental Protection Agency to Georgia's Environmental Protection Division of the Department of Natural Resources. Finally, we are concerned that this bill will create uncertainty within the regulated community and may result in industry making expenditures to comply with a regulation that the legislature later overrides.

         Please find attached a summary of our findings with respect to H.B. 1182. Feel free to call Julie Mayfield at (404) 727-3432 or Justine Thompson at (404) 659-3122 if you would like any additional information. Thank you for your consideration of this important matter.

LEGAL ANALYSIS OF H.B. 1182

SUMMARY OF H.B. 1182

         Section One of the bill creates an "Agricultural Advisory Committee" that is comprised of 12 members, 10 of whom are appointed by the Senate and House Agriculture Committees and at least six of whom are legislators. This section requires the Environmental Protection Division (EPD) of the Department of Natural Resources (DNR) to submit any proposed water quality rules that might have an effect on family farms and agriculture to this Committee for review prior to their adoption.

         Section Two subjects EPD rules and regulations to the possibility of legislative override.

CONSTITUTIONAL CONCERNS

         The Separation of Powers Doctrine

         Both sections of this bill raise constitutional questions under the separation of powers doctrine. The separation of the judicial, legislative, and executive branches of government is a fundamental component of our democracy under which the legislative branch has the power to adopt and modify laws, the judicial branch has the power to review those laws, and the executive branch is vested with the power and duty to implement or execute those laws. The Georgia Constitution is consistent in this design in that it vests executive power in the Governor and states that he "shall take care that the laws are faithfully executed . . . ." Ga. Const. Art V, § 2, 2. The Georgia Constitution further vests legislative power in the General Assembly, stating it is their duty to enact laws. Ga. Const. Art III, § 1, ¶ 1. And finally, the Georgia Constitution vests the judicial power in the courts. Ga. Const. Art VI, § 1, ¶ 1.

         Another fundamental principle of the separation of powers doctrine is that no branch has the right or power to infringe upon the duties assigned to the others. This principle is also enshrined in the Georgia Constitution, which states, "The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others . . . ." Ga. Const. Art I, § 2, ¶ 3. Therefore, the General Assembly cannot exercise those powers vested in the Governor, specifically the power to implement the law.

         It is axiomatic that, because state agencies are under the direction of the governor, rulemaking and other actions by a state agency are functions of the executive branch. See e.g. Kansas v. Kansas House of Representatives, 687 P.2d 622, 635 (Ks. 1984). Therefore, under the separation of powers doctrine, the legislature must take care not to implement laws which may hinder the ability of an agency - and thus the executive branch - to perform its constitutionally delegated duties.

         In Section One of H.B. 1182, the legislature seeks to create a committee that is intended to advise EPD on water quality rules that may impact the agricultural community. While the legislature may provide for a purely advisory committee, under the separation of powers doctrine, it is impermissible for the legislature to provide "a device whereby [the legislative branch] could block . . . the administrative policy of the executive branch." Legislative Research Comm'n v. Brown, 644 S.W.2d 907, 918 (Ky. 1984). Included in this prohibition are legislative devices which may result in delays in the implementation of regulations. Id. H.B. 1182 is problematic in this regard, because it is written such that EPD cannot adopt the proposed rules until the Agriculture Advisory Committee has reviewed the rules. There is no time frame within which the committee must review the rules, therefore, the committee could block the adoption of DNR rules indefinitely simply by refusing to review them. While this may not have been the author's intent, the legislature's ability to block these rules interferes with executive functions in violation of the doctrine of separation of powers. See Greer v. State of Georgia, 233 Ga. 667 (1975) (holding a portion of an act unconstitutional as a violation of separation of powers where the legislative body impermissibly infringed upon an executive function).

         Section Two of H.B. 1182 likewise provides for an impermissible encroachment upon the functions of the executive branch. This section would allow the legislature to override EPD rules that have been properly promulgated, again putting the legislature in the position of implementing the law by preventing the rules from taking effect. Notwithstanding that this bill only removes the exemption currently provided to EPD under the legislative override provision in the APA, most provisions of this kind in other states have been found unconstitutional, primarily because the provisions violate the separation of powers principle. For instance, the Missouri Supreme Court found unconstitutional a law which permitted "the legislature . . . to suspend and withdraw rules already promulgated by the DNR." Missouri Coalition for the Environment v. Jt. Comm. on Admin. Rules, 948 S.W. 2d 125, 128 (Mo. 1997). In reaching its decision, the Court stated that:

Id. at 134 (citations omitted). The New Jersey Supreme Court found a law very similar to Georgia's unconstitutional on separation of power grounds, stating, "By allowing the Legislature to control agency rulemaking, the legislative veto can gravely impair the functions of agencies charged with enforcing statutes. The extremely broad legislative veto [present in this case] thereby frustrates the Executive's constitutional mandate to faithfully execute the law." State of New Jersey v. Byrne, 448 A.2d 438, 443 (N.J. 1982). The United States Supreme Court has also struck down statutes that attempted to provide for legislative override of agency rules on the federal level. See INS v. Chadha, 462 U.S. 919 (1983). While only a court can determine an act's constitutionality, we conclude that the provision of H.B. 1182 that puts EPD rules under the threat of legislative veto is constitutionally unsound. ¹

         The Presentment Clause

          This bill is also constitutionally unsound on the basis of the presentment clause of the Georgia Constitution, which states, "All bills and all resolutions which have been passed by the General Assembly intended to have the effect of law shall become law if the Governor approves or fails to veto the same within six days from the date any such bill is transmitted to the Governor. . . ." Ga. Const. Art. III, § 5, ¶ 8. The Constitution also states that "no provision in this Constitution for a two-thirds vote of both houses of the General Assembly shall be construed to waive the necessity for the signature of the Governor . . . ." Ga. Const. Art. III, § 5, ¶ 11. These constitutional provisions together codify the principal that all bills or resolutions "intended to have the effect of law" must be presented to the Governor for approval and signature.

          The proposal in H.B. 1182 to remove EPD's exemption from legislative override procedures would allow the General Assembly, with a two-thirds vote of each branch, to void a rule promulgated by EPD, without presentment to the Governor. The APA provision which H.B. 1182 proposes to amend provides that the override becomes effective the day after it is taken and therefore allows no time for the resolution to be presented to the governor as constitutionally required. The Georgia Constitution is clear that in order for the resolution to have the "effect of law," the resolution must be presented to the Governor. As with the separation of powers issue, many courts in other states, including Alaska, Oregon, New Jersey, Missouri, Michigan, and West Virginia have found that legislative override provisions violate their state constitution's presentment clause. Accordingly, we conclude that H.B. 1182 is constitutionally infirm.

DELEGATION OF AUTHORITY UNDER FEDERAL LAW

         In addition to the constitutional problems presented by the legislative veto of administrative regulations, H.B. 1182 may threaten EPD's administration of federally delegated environmental programs. For instance, EPD has been delegated the authority from EPA to administer the Federal Clean Water Act permitting program in Georgia. As part of this delegated program, EPD must promulgate regulations that meet or exceed federal regulations. As federal regulations change, so must parallel state regulations, and often, EPD is under a strict deadline to promulgate state regulations to meet federal requirements. Pursuant to Section Two of H.B. 1182, all rules promulgated by EPD and adopted by the DNR are subject to legislative review and override regardless of whether such regulations are mandated by federal law. As such, the veto of EPD regulations could cause EPD to miss a federally imposed deadline for promulgation of such regulations. This, in turn, may cause EPA to revoke Georgia's administration of its delegated water programs and assume federal responsibility for those programs.

         Even Section One, which would create an "Agriculture Advisory Committee" may impact EPD's delegated water programs. As written, the legislation allows the Advisory Committee to advise EPD as to the impact that proposed water quality regulations may have on agriculture prior to the adoption of such rules. As an initial matter, the agriculture community and any and all representatives of any legislative committee are already provided the opportunity to submit their views with respect to given rules through the procedures mandated by federal law. See e.g. O.C.G.A. § 12-5-23.1 (providing for notice and public comment prior to the adoption of water quality standards). As such, any and all interested persons may voice their views and EPD is required to consider such viewpoints prior to adoption of the rule. More significantly, however, as discussed above, the Agriculture Advisory Committee is not subject to any time limits in its consideration of EPD's proposed regulations. Therefore, this committee alone has the power to hold up the promulgation of any rule indefinitely, again subjecting EPD to the risk of failing to comply with federally imposed deadlines, including deadlines imposed by federal courts. See e.g. Sierra Club v. Hankinson, 939 F. Supp. 872 (N.D.Ga. 1996) (imposing deadlines for the creation and implementation of TMDLs).

UNCERTAINTY WITHIN THE REGULATED COMMUNITY

          Finally, if H.B. 1182 is passed, it has the potential to create uncertainty within the regulated community. Under the APA provision that will be amended by this bill, if a legislative committee has objected to an EPD rule prior to the rule's adoption, the legislature must wait to introduce a resolution to override that rule until the first 30 days of the next legislative session. For instance, if DNR promulgates a rule in March, the legislature cannot override that rule until the next legislative session, nine months away. However, the regulated community would be required to comply with that regulation during those nine months, despite the possibility that the legislature will override it. Environmental regulations often require the regulated community to spend capital and other resources to comply with the regulations, and these resources will have been wasted if the legislature overrides the regulation. That will put the regulated community in the difficult position of either failing to comply with the rule or spending capital that might be lost if the legislature overrides the regulation.

¹   The discussion with respect to Section Two of H.B. 1182 also calls into question the validity of O.C.G.A. § 50-13-4(f), the APA provision H.B. 1182 seeks to amend. There are no Georgia cases which determine the validity of this provision, but our research indicates that this entire provision may be constitutionally infirm.