Monday, August 30, 2010

statutes - regulations - delegation of legislative authority

Pennsylvania Builders Assn. v. Dept. of Labor and Industry - Cmwlth. Court - August 25, 2010

Plaintiff challenged administrative regulations implementing the state construction code, claiming that the regs were promulated by an improper delegation of legislative authority, contrary to Article II, sec. 1, of the Pennsylvania Constitution, which place the power to make laws exclusively within the province of the state legislature.

The court rejected the challenge, stating the following general principles:

Article II, Section 1 of the Pennsylvania Constitution provides that “[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” Pa. Const. art. II, § 1. “Legislative power has been described as the power to incur public debts, levy or collect taxes or make laws.” Scuoteguazza v. DOT, 399 A.2d 1155, 1157 (Pa. Cmwlth. 1979). The legislative power implicated here is the General Assembly’s authority to “make laws.” In Association of Settlement Companies, this Court stated that “Article II, section 1 embodies the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority.” Assn. of Settlement Companies, 977 A.2d at 1265 (quotation marks omitted). Thus, neither L&I nor ICC may be delegated the General Assembly’s power to make law.

The General Assembly may, however, delegate rule-making authority. This Court has declared that “[t]he Legislature may . . . authorize an agency to carry out the legislative intent described in general terms through rules, regulations and standards established by the agency.” Bortz Coal Co. v. Air Pollution Comm’n, 279 A.2d 388, 392 (Pa. Cmwlth. 1971). The General Assembly may delegate: “rulemaking in the sense of creating generalized rules of continuing application on the subject of the legislature’s concern.” Charter Hosp. of Bucks County v. Dep’t of Health, 534 A.2d 1125, 1130 (Pa. Cmwlth. 1987). Properly delegated rulemaking authority exists: “where the legislature states a general policy but gives the administrative agent, within limits set by express standards, the power to fill in details of the policy with regulations.” Id.

‘Where the standard fixed by the Legislature is not arbitrary or unlimited, but is definite and reasonable, the delegation of power or discretion will be sustained as constitutional. In considering the standard, regard must be had to the purpose and scope of the Act, the subject matters covered therein, the duties prescribed, and the broad or narrow powers granted, because those factors will often determine whether or not a sufficiently clear, definite and reasonable standard has been established.’ Bortz Coal Co., 279 A.2d at 393 (quoting Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 449, 130 A.2d 686, 688 (1957)).

There is not a bright line test for determining exactly how or when rules, regulations or standards developed by administrative agencies or non-governmental parties become improper enactments of substantive law. In Gilligan v. Pennsylvania Horse Racing Commission, 492 Pa. 92, 422 A.2d 487 (1980), the Pennsylvania Supreme Court held “[t]he latitude of the standards controlling exercise of the rulemaking powers expressly conferred on [a non-legislative party] must be viewed in light of the broad supervisory task necessary to accomplish the express legislative purpose.” Id., 492 Pa. at 98, 422 A.2d at 490. Ultimately, “[t]he rules, regulations and standards of the regulatory agency must be reasonable, understandable, available, and must not violate the constitutional rights of any citizen.” Bortz Coal Co., 279 A.2d at 392. “[T]he delegation of authority to an agency is construed liberally when the agency [namely, L&I,] is concerned with protecting the public’s health and welfare.” DRB, Inc. v. Dept. of Labor & Industry, 853 A.2d 8, 19 (Pa. Cmwlth. 2004), aff’d, 585 Pa. 8, 887 A.2d 1216 (2005).