UPDATE: Washington State Rule-Making Suspension Leaves Proposed Climate Change Regs Untouched


When is a one-year rule-making suspension ordered by a governor not a suspension? In the case of the Washington Department of Ecology's latest announcement, it's when several exemptions allow continuation of most of the proposed regulations addressing climate change. In response to Gov. Christine Gregoire's executive order suspending all "non-critical" rule-making for one year, the agency is suspending seven proceedings -- including revisions to the rules implementing the state's mini-CERCLA statute, known as the Model Toxics Control Act, as well as dangerous waste regulations -- but 18 other Ecology rule-making proceedings, including several addressing greenhouse gas emissions, will not be affected by the governor's one-year hiatus.

Executive Order

On November 17, Washington Gov. Gregoire issued an executive order (PDF) to suspend all non-critical rule-making by state agencies due to the continuing recession and a need to re-focus scarce administrative resources. A set of guidelines (PDF) for determining what constitutes a "non-critical" rulemaking contained a number of exemptions for rules required by federal or state law; to maintain federally delegated or authorized programs; required by court order; necessary to manage budget shortfalls or generate revenue; necessary to protect public health, safety or welfare or to avoid immediate threats to natural resources; or beneficial to or requested by affected regulated entities, local governments or small businesses. Based on the scope of the exemptions, it appeared that few rule-making proceedings, particularly those by Ecology, would be halted by the order.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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