There’s an Arizona twist to state agency rulemaking that I’ve never quite understood.
Both the Brewer & Ducey administrations put handcuffs on agency directors when it comes to rulemaking. Each issued Executive Orders saying that agencies even start on a new rule unless they went through a cumbersome review process and got approval from the governor’s office. A nearly impossible feat.
Brewer’s moratorium had an odd but predictable effect: it largely locked in the agency rules adopted during the Napolitano administration. Napolitano’s agencies had been prolific rulemakers, and their rules remained in effect throughout the Brewer Administration.
Then Ducey continued the same approach for another 8 years.
So, in an effort to stop agencies from adopting new regulations, two Republican administrations effectively preserved a whole bunch of Napolitano-era rules at agencies like the ADEQ, ADHS, ADES, ADWR etc.
As a result, Napolitano’s rules governing air, water and waste, health, resource management are largely still intact even though she abandoned her post almost 20 years ago.
Ducey’s hostility toward agency rulemaking turned out to be good for public health and the environment. If he had pursued rules, his agency directors would have undoubtedly weakened protections across the board.
I’ve never understood Brewer and Ducey’s strategy.
If I was governor, I’d take a lesson from Napolitano. I’d tell my agency directors to hire good policy people, find outdated regulations, and use my existing statutory authority to use agency rulemakings to lock in my priorities for the long haul.
When I was ADHS director, we were able to get several major rulemakings completed, but most were specifically required by statute. Medical marijuana was the obvious example. We also overhauled the regulations governing assisted living centers, skilled nursing facilities and behavioral health facilities.
To get that overhaul done, we worked with stakeholders to pass a bill directing ADHS to rewrite the rules. Governor Brewer signed it. In other words, we needed a statute requiring the agency to regulate before the agency could get through the barriers to rulemaking.
Rules have way more staying power and when subsequent governors are hostile to changing their predecessors agency rules they do themselves a disservice… but that turned out OK for state public health – at least in Arizona.
