Wednesday, April 15, 2009

adminative law - regulation v. statement of policy

Borough of Bedford, et al. v. DEP, et al. - Cmwlth. Court - April 14, 2009

DEP's motion for summary judgment denied. DEP claimed that the relevant document was a statement of policy, 45 P.S. 1102(13). The Plaintiffs claimed that it was a regulation, 45 P.S. 1102(12). The court said that the statutory definitions "do little to separate a statement of policy from a regulation" and that the resolution of the legal issue would require factual development.

There is an extensive discussion about the important administrative law issue of whether an agency promulgation is a

- regulation, which has the force of law, establishes a "binding norm," and must be adopted according to a strict procedure - The "basic procedures by which an agency promulgates a regulation are set forth in the Commonwealth Documents Law. In essence, these procedures require an agency to give notice to the public of its proposed rule-making and an opportunity for the public to comment.11 See Eastwood Nursing, 910 A.2d at 141 n.13. However, this is only the beginning. The agency must also obtain the approval of the Attorney General and the General Counsel of a proposed regulation’s form and legality. Sections 204(b) and 301(10) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally, an agency’s regulation must also undergo legislative scrutiny in accordance with the Regulatory Review Act." - OR

- statement of policy, which does not have the force of law , but rather is "merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications....A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. Id. at 349-350, 374 A.2d at 679 (quoting Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (1974)) (emphasis added)."