AUGUSTA — When it comes to approving new state regulations, Gov. Paul LePage wants the buck to stop at him.
That has some people — environmentalists in particular — concerned.
LePage this week signed an executive order that empowers the governor to delay and alter rule-making procedures at all state agencies if he deems them too costly to enforce, already addressed by federal law or an impediment to job creation.
The governor signed a similar order immediately after taking office in January. However, that order applied to rules already in the pipeline. The new directive applies to new regulations that state agencies might consider, such as adding chemicals to the Kid-Safe Product Act or efforts to strengthen environmental or natural resources regulations.
Critics say the law raises a host of concerns, including a potential conflict with separation of powers in the state constitution, because, they say the order would allow LePage to circumvent the legislative process of vetting and adopting rule-making.
The same argument was levied against Florida Republican Gov. Rick Scott, who has taken nearly identical steps to influence regulations in the Sunshine State. Last week, the Florida Supreme Court ruled that Scott had overstepped his constitutional authority. The plaintiff in the case was a blind woman who argued that Scott's executive order hampered a process that made it easier for her to obtain food stamps.
Several groups joined the case, including the Audubon Society.
In Maine, major state agency regulations are proposed and adopted or rejected by the Legislature and committees of jurisdiction through a public hearing and committee process that often includes input from the governor's administration or Cabinet.
One provision of LePage's order suspends public review and comments on proposed rules until the governor allows the rule-making to proceed. Any subsequent changes would also have to be approved by the governor.
"It's almost as if the governor now has veto power to stop a regulation before it even has a public hearing," said Sean Mahoney, an attorney with the Conservation Law Foundation, an environmental advocacy group.
Sen. Seth Goodall, D-Richmond, the ranking Democrat on the Legislature's Environmental Committee, said the order subjects rule-making to the influence of outside interests of which the public may not be aware. He added that those interests might opt to lobby the executive branch rather than participate in public hearings inherent in the committee process.
"We need to make sure our regulations are adopted in a transparent way," Goodall said. "They shouldn't be made vulnerable to intense lobbying from special interests on both sides of the issue."
Goodall said the public also wouldn't know how the governor was determining whether a regulation inhibited job creation or was too costly.
Michael Cianchette, the governor's deputy legal counsel, countered that the order stipulates that regulations deemed to impede job growth or other criteria would be explained in writing and made available to the public.
"The order itself is very clear that any findings to be made under the criteria are to be put forth, and that is certainly a public record that can be asked for or received by any member of the public," said Cianchette, adding that correspondence with the governor's office was also subject to Maine's Freedom of Access Act.
But Mahoney said FOAA requests can take time and wouldn't capture verbal conversations between the administration and an organization that had an interest in stopping a regulation but perhaps no desire to make that effort public.
Mahoney also questioned why the order was necessary, given that state agencies and their commissioners already serve at the pleasure of the governor. And, given that the governor is required to sign or veto regulations approved by the Legislature, his administration's position carries significant weight in the public process, Mahoney said.
"As far as I know, most agencies already include in their thinking such criteria as impacts on job creation and cost of implementation," said Mahoney, adding that the governor presumably appoints members to his Cabinet with regulatory expertise and that commissioners are often backed by professional staff.
"Where's that expertise in the governor's office?" he said.
Cianchette said the administration relied on its Cabinet members to be the experts in their respective policy areas and to work closely with their staff to put forward rules that are good for all of Maine.
"But like anything, it's good to get another set of eyeballs on something," he said. "Bringing in another party ensures that there is a coherent, coordinated policy moving forward and things aren't advancing piecemeal."
Mahoney referred to the outside interests that influenced the governor's proposals in LD 1, the so-called regulatory reform package. Several reports eventually linked LePage's amendment to that bill to a prominent lobbying firm that had represented chemical and pharmaceutical companies.
A detailed report published in the Portland Phoenix showed that such influence was widespread in the administration. The author obtained the information through a sizable FOAA request that took the administration months to comply with.
Mahoney said the executive order created a lot of "room for mischief."
Cianchette said the order was simply a continuation of the governor's pledge to streamline regulations and promote job growth.