Every day workers and businesses across Washington are required to comply with government regulation. While regulation can help improve health and safety, it can also be burdensome and produce unnecessary costs for businesses that get passed on to consumers. That’s why Washington state has laws that require agencies to consider cost-benefit analysis and the cost of compliance for small businesses before making new rules. Ideally this means consumers are still protected by necessary regulations while businesses are spared the costs of unnecessary ones.
The trouble is, sometimes agencies don’t follow those requirements correctly. Thankfully state law provides a rulemaking appeals process to rectify mistakes. This allows businesses subject to a given policy proposal, advocacy groups with an interest in the policy, or citizens following the rulemaking process out of civic duty to hold the agencies accountable to the law and make our regulation better.
Over the past year I myself have participated in appealing rulemaking for the state energy code because the Washington State Building Code Council did not comply with the Regulatory Fairness Act. While I noticed the noncompliance through working for the Washington Policy Center, personally I was interested in the appeal because I thought it was morally wrong for an agency to get away with breaking the law. Now working as the policy and research manager for the Building Industry of Washington, I get to work with builders and directly see the extra costs they face from the SBCC’s regulation and how that increases housing costs for Washingtonians.
My appeal was ultimately rejected due to active litigation, but navigating the entire rulemaking appeals process taught me how flawed it is. A few key improvements would reform the whole system.
1. Don’t Rely on Self-Enforcement
The first stop in the appeals process is for a concerned citizen or impacted business or advocacy group to directly appeal to the agency for reconsideration. This creates a conflict of interest where agencies are motivated to deny the appeal without considering its substance to avoid casting doubt on the validity of the underlying policy Appealing the SBCC took three months, and they still did not address the substance of my appeal despite the law requiring them to do so. Removing this step will shorten the appeals process and make it more likely for a timely resolution.
2. The Buck Doesn’t Stop Here
After an appeal has been denied by an agency, the next step is to appeal the decision to the governor. This has the potential to pose another conflict of interest as many rulemaking agencies are within the executive branch and ultimately under the governor’s direction. The governor faces the same motivation as the agency to avoid taking action that would question the validity of the policy. Yet, if an agency is independent of the executive branch, the governor can claim they lack authority to direct the agency to rectify the noncompliance.
I knew that there would be significant pressure not to roll back the entire energy code over the noncompliance, so in my appeal I proposed an alternative solution in alignment with the current appeals process. Despite this, in denying my appeal, the governor stood by the SBCC’s decision without addressing the substance of the appeal and further claimed he could not direct them to implement the alternative solution because they are an independent agency.
This step in the process is only likely to succeed in the rare event where the governor disagrees with the policy. It doesn’t sufficiently address noncompliance issues and should be refined, or better yet, removed.
3. Clarify the Process
A person shouldn’t have to hire a lawyer to navigate this appeals process. Even with my prior experience working with government noncompliance, I still had trouble navigating the process and, unfortunately, made a few mistakes (thankfully none that prevented the process from progressing). The appeals process only exists to address rulemaking issues without litigation—which ought to mean the average person can tackle it on their own. The current process is outlined in multiple statutes and codes, and it has two different pathways that overlap in confounding ways. It should be reformed into one clear path that is easier to navigate.
4. Back to the Legislature
The second pathway for the appeals process is through the Joint Administrative Rules Review Committee within the state legislature. Unlike other legislative committees, the JARRC has equal members from both majority and minority parties. This makes it perfectly suited to audit rulemaking gone awry. Yet, JARRC requires citizens first appeal agencies directly — and even then JARRC rarely ever meets. They also won’t accept review requests during legislative sessions and 60 days leading up to regular sessions. The best time to resolve these appeals is before the rules go into effect. But under the current system, JARRC basically doesn’t operate for half the year, leaving massive windows where it’s unlikely agencies will be held accountable for noncompliance. JARRC is well designed to handle these noncompliance issues, but they need to function year-round and always consider the merits of a citizen request.
All rulemaking authority is derived from legislative authority, and it makes the most sense for the legislature to determine whether agencies used that authority inappropriately. The alternative is to rely solely on litigation as a means of recourse which is inaccessible for average citizens and costly for taxpayers. By implementing these ideas we could save time and money and do a better job of holding agencies accountable to the law.
Patrick Hanks is the Policy and Research Manager for the Building Industry Association of Washington. He graduated from the University of Washington with a degree in communication studies. Follow him on X @pnwrhetoric.
