By: Brown S.B. No. 633
A BILL TO BE ENTITLED
AN ACT
1-1 relating to assessments performed before agency adoption of certain
1-2 environmental rules.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 2001, Government Code, is amended by
1-5 adding Section 2001.0225 to read as follows:
1-6 Sec. 2001.0225. REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL
1-7 RULES. (a) This section applies only to a major environmental
1-8 rule adopted by a state agency, the result of which is to:
1-9 (1) exceed a standard set by federal law, unless the
1-10 rule is specifically required by state law;
1-11 (2) exceed an express requirement of state law, unless
1-12 the rule is specifically required by federal law;
1-13 (3) exceed a requirement of a delegation agreement or
1-14 contract between the state and an agency or representative of the
1-15 federal government to implement a state and federal program; or
1-16 (4) adopt a rule solely under the general powers of
1-17 the agency instead of under a specific state law.
1-18 (b) Before adopting a major environmental rule subject to
1-19 this section, a state agency shall conduct a regulatory analysis
1-20 that:
1-21 (1) identifies the problem the rule is intended to
1-22 address;
1-23 (2) determines whether a new rule is necessary to
2-1 address the problem; and
2-2 (3) considers the benefits and costs of the proposed
2-3 rule in relationship to state agencies, local governments, the
2-4 public, the regulated community, and the environment.
2-5 (c) When giving notice of a major environmental rule subject
2-6 to this section, a state agency shall incorporate into the fiscal
2-7 note required by Section 2001.024 a draft impact analysis
2-8 describing the anticipated effects of the proposed rule. The draft
2-9 impact analysis, at a minimum, must:
2-10 (1) identify the benefits that the agency anticipates
2-11 from adoption and implementation of the rule, including reduced
2-12 risks to human health, safety, or the environment;
2-13 (2) identify the costs that the agency anticipates
2-14 state agencies, local governments, the public, and the regulated
2-15 community will experience after implementation of the rule;
2-16 (3) describe the benefits and costs anticipated from
2-17 implementation of the rule in as quantitative a manner as feasible,
2-18 but including a qualitative description when a quantitative
2-19 description is not feasible or adequately descriptive;
2-20 (4) describe reasonable alternative methods for
2-21 achieving the purpose of the rule that were considered by the
2-22 agency and provide the reasons for rejecting those alternatives in
2-23 favor of the proposed rule;
2-24 (5) identify the data and methodology used in
2-25 performing the analysis required by this section;
3-1 (6) provide an explanation of whether the proposed
3-2 rule specifies a single method of compliance, and, if so, explain
3-3 why the agency determines that a specified method of compliance is
3-4 preferable to adopting a flexible regulatory approach, such as a
3-5 performance-oriented, voluntary, or market-based approach;
3-6 (7) state that there is an opportunity for public
3-7 comment on the draft impact analysis under Section 2001.029 and
3-8 that all comments will be addressed in the publication of the final
3-9 regulatory analysis; and
3-10 (8) provide information in such a manner that a
3-11 reasonable person reading the analysis would be able to identify
3-12 the impacts of the proposed rule.
3-13 (d) After considering public comments submitted under
3-14 Section 2001.029 and determining that a proposed rule should be
3-15 adopted, the agency shall prepare a final regulatory analysis that
3-16 complies with Section 2001.033. Additionally, the agency shall
3-17 find that, compared to the alternative proposals considered and
3-18 rejected, the rule will result in the best combination of
3-19 effectiveness in obtaining the desired results and of economic
3-20 costs not materially greater than the costs of any alternative
3-21 regulatory method considered.
3-22 (e) In preparing the draft impact analysis before
3-23 publication for comment and the final regulatory analysis for the
3-24 agency order adopting the rule, the state agency shall consider
3-25 that the purpose of this requirement is to identify for the public
4-1 and the regulated community the information that was considered by
4-2 the agency, the information that the agency determined to be
4-3 relevant and reliable, and the assumptions and facts upon which the
4-4 agency made its regulatory decision. In making its final
4-5 regulatory decision, the agency shall assess:
4-6 (1) all information submitted to it, whether
4-7 quantitative or qualitative, consistent with generally accepted
4-8 scientific standards;
4-9 (2) actual data where possible; and
4-10 (3) assumptions that reflect actual impacts that the
4-11 regulation is likely to impose.
4-12 (f) A person who submitted public comment in accordance with
4-13 Section 2001.029 may challenge the validity of a major
4-14 environmental rule that is not proposed and adopted in accordance
4-15 with the procedural requirements of this section by filing an
4-16 action for declaratory judgment under Section 2001.038 not later
4-17 than the 30th day after the effective date of the rule. If a court
4-18 determines that a major environmental rule was not proposed and
4-19 adopted in accordance with the procedural requirements of this
4-20 section, the rule is invalid.
4-21 (g) In this section:
4-22 (1) "Benefit" means a reasonably identifiable,
4-23 significant, direct or indirect, favorable effect, including a
4-24 quantifiable or nonquantifiable environmental, health, or economic
4-25 effect, that is expected to result from implementation of a rule.
5-1 (2) "Cost" means a reasonably identifiable,
5-2 significant, direct or indirect, adverse effect, including a
5-3 quantifiable or nonquantifiable environmental, health, or economic
5-4 effect, that is expected to result from implementation of a rule.
5-5 (3) "Major environmental rule" means a rule the
5-6 specific intent of which is to protect the environment or reduce
5-7 risks to human health from environmental exposure and that may
5-8 adversely affect in a material way the economy, a sector of the
5-9 economy, productivity, competition, jobs, the environment, or the
5-10 public health and safety of the state.
5-11 (h) The requirements of this section do not apply to state
5-12 agency rules that are proposed or adopted on an emergency basis to
5-13 protect the environment or to reduce risks to human health from
5-14 environmental exposure.
5-15 SECTION 2. This Act takes effect September 1, 1997, and
5-16 applies only to a major environmental rule, as defined by Section
5-17 2001.0225, Government Code, as added by this Act, that is proposed
5-18 by a state agency on or after that date.
5-19 SECTION 3. The importance of this legislation and the
5-20 crowded condition of the calendars in both houses create an
5-21 emergency and an imperative public necessity that the
5-22 constitutional rule requiring bills to be read on three several
5-23 days in each house be suspended, and this rule is hereby suspended.