New Hampshire Legislative Service Requests (LSR's)

HB 1614-FN - AS INTRODUCED

2024 SESSION

24-2420

09/10

HOUSE BILL 1614-FN

AN ACT relative to judicial review of department of environmental services decisions.

SPONSORS: Rep. McWilliams, Merr. 30; Rep. Bixby, Straf. 13; Rep. Noel, Coos 5

COMMITTEE: Judiciary

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ANALYSIS

This bill establishes a new framework for review of decisions and rules of the department of environmental services to give less deference to agency decisions and prior reviews thereof.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

24-2420

09/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Four

AN ACT relative to judicial review of department of environmental services decisions.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Proceedings in Special Cases; Rehearings and Appeals in Certain Cases; Burden of Proof. Amend RSA 541:13 to read as follows:

541:13 Burden of Proof. For any agency other than the department of environmental services, upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful, and all findings of the commission upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable. The department of environmental services shall be governed by the standards set forth in RSA 541:13-a.

2 New Section; Proceedings in Special Cases; Rehearings and Appeals in Certain Cases; Review of Orders and Decisions of the Department of Environmental Services. Amend RSA 541 by inserting after section 13 the following new section:

541:13-a Department of Environmental Services Orders and Decisions. Upon a hearing where a party is seeking to set aside any order or decision issued under RSA 21-O:

I.(a) The burden of demonstrating the invalidity of agency action is on the party asserting invalidity;

(b) The validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken; and

II. The court shall grant relief from the agency order or decision if:

(a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied;

(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;

(c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;

(d) The agency has erroneously interpreted or applied the law;

(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;

(f) The agency has not decided all issues requiring resolution by the agency;

(g) A motion for disqualification was made and was improperly denied or, if no motion was made, facts are shown to support the grant of such a motion that were not known and were not reasonably discoverable by the challenging party at the appropriate time for making such a motion;

(h) The order is inconsistent with a rule of the agency unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for the inconsistency; or

(i) The order is arbitrary or capricious.

III. A person whose rights are violated by the agency's failure to perform a duty that is required by law to be performed may file a petition for review, seeking an order pursuant to this subsection requiring performance. Within 20 days after service of the petition for review, the agency shall file and serve an answer to the petition, made in the same manner as an answer to a complaint in a civil action. The court may hear evidence on material issues of fact raised by the petition and answer.

3 Proceedings in Special Cases; Administrative Procedure Act; Declaratory Judgment on Validity or Applicability of Rules. Amend RSA 541-A:24 to read as follows:

541-A:24 Declaratory Judgment on Validity or Applicability of Rules. For any agency other than the department of environmental services, the validity or applicability of a rule may be determined in an action for declaratory judgment in the Merrimack county superior court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. The plaintiff shall give notice of the action to the office of legislative services, division of administrative rules, at the time of filing. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question. Upon receiving a declaratory judgment, the respondent agency or department shall also file a copy of that judgment with the office of legislative services, division of administrative rules. The department of environmental services shall be governed by the standards set forth in RSA 541-A:24-a.

4 New Section; Proceedings in Special Cases; Administrative Procedure Act; Declaratory Judgment on Validity or Applicability of Rules Regarding Department of Environmental Services Rules. Amend RSA 541-A by inserting after section 24 the following new section:

541-A:24-a Declaratory Judgment on Validity or Applicability of Department of Environmental Services Rules.

I. The validity or applicability of a rule adopted pursuant to authority granted by RSA 21-O may be determined in an action for declaratory judgment in the Merrimack county superior court when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair the legal rights or privileges of the petitioner.

II. The agency shall be made a party to the action. The plaintiff shall give notice of the action to the office of legislative services, division of administrative rules, at the time of filing.

III. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

IV.(a) The burden of demonstrating the invalidity of the rule is on the party asserting invalidity;

(b) The validity of the rule shall be determined in accordance with the standards of review provided in this section; and

V. The court shall declare the rule invalid if it finds that:

(a) The rule violates constitutional provisions;

(b) The rule exceeds the statutory authority of the agency;

(d) The rule is arbitrary or capricious.

VI. Upon receiving a declaratory judgment, the agency shall also file a copy of that judgment with the office of legislative services, division of administrative rules.

5 Effective Date. This act shall take effect January 1, 2025.

LBA

24-2420

Revised 12/22/23

HB 1614-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to judicial review of department of environmental services decisions.

FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None


Estimated State Impact - Increase / (Decrease)
	FY 2024	FY 2025	FY 2026	FY 2027
Revenue	$0	$0	$0	$0
Revenue Fund(s)	None
Expenditures	$0	Indeterminable Increase	Indeterminable Increase	Indeterminable Increase
Funding Source(s)	General Fund
Appropriations	$0	$0	$0	$0
Funding Source(s)	None
• Does this bill provide sufficient funding to cover estimated expenditures? [X] No • Does this bill authorize new positions to implement this bill? [X] No

METHODOLOGY:

This bill establishes a new framework for review of decisions and rules of the Department of Environmental Services to give less deference to agency decisions and prior reviews thereof. The Department cannot foresee which decisions might be appealed and/or impacted by these changes and therefore cannot determine the fiscal impact. The bill provides for declaratory judgment in the Merrimack County Superior Court on the validity or applicability of a rule adopted pursuant to authority of the Department granted by RSA 21-O. Since the Department of Justice represents the Department of Environmental Services on most appeals to the Councils and would represent the Department of Environmental Services in declaratory judgment actions in the Merrimack County Superior Court, the Department defers to the Department of Justice for information regarding the fiscal impact of the bill, if any.

The Department of Justice indicates this bill is attempting to change the standards of review for decisions made by the Department of Environmental Services. The Department of Justice states the bill is inconsistent with other provisions of law. Appeals of decisions made by the Department of Environmental Services are not heard by the N.H. Supreme Court, but they are heard by the four environmental councils established in RSA 21-O. These councils are separate from the Department and have their own independent counsel at the Department of Justice. Decisions of these councils, not the Department of Environmental Services, are heard by the Supreme Court. Sections 1 and 2 of the bill presume that decisions of the Department are heard by the Supreme Court. The Department of Justice assumes this may lead to additional litigation and appeals. The bill also establishes a new cause of action to require agency action and a new declaratory judgment procedure. The Department states it is not possible to accurately quantify the additional litigation and appeals that may occur as a result of this bill or the associated increase in costs. The impact could be zero, however, one or two very contentious litigants can cause costs to increase dramatically. In addition, the ability for litigants to file new causes of action will likely lead to increased litigation. A small number additional litigation matters might be handled within the current budget. A larger increase in litigation matters may increase expenditures by up to approximately $50,000.

The Judicial Branch indicates it is not possible to estimate how this change in law would impact the number of filings in the courts. It is possible that a lower standard of deference may result in additional litigation.

AGENCIES CONTACTED:

Department of Justice, Environmental Services and Judicial Branch