Out-of-state entities accustomed to submitting public comments to state regulatory agencies in response to proposed rules or other matters calling for comments will be wasting their time if the Legislature enacts a proposal introduced earlier this week.
SB 520 would require state agencies to adopt a priority system for considering public comments on matters legally requiring them. Under the system, the agency must give first consideration to comments by individual residents directly affected by the agency action, with all other Texas res second place to other individual Texas residents (i.e., those not “directly affected). Only then could comments offered by resident businesses and nonprofit organizations receive consideration. As to nonresident individuals and entities, however, an agency may log the comments in the official record but may not consider them “in relation to any business pending before the agency,” nor may they “form the basis for a delay in consideration” of pending business.
It is unclear what this proposal is intended to accomplish, since in our experience state agencies routinely consider everybody’s comments and respond accordingly without any evidence of favoritism or “prioritizing” some comments over others. If the intention is to exclude nonresident business and other organizations from participating in a rulemaking or permitting process otherwise permitted by the Adminsitrative Procedures Act purely on the basis that they represent similar interests in other states as well as Texas, then all the proposal does is to deprive state agencies of the insights and experience of those organizations in the national and global markets.
If we are striving to balance the interests of all interested parties in a matter before a state agency in the best way possible to accomplish the agency’s purpose without damaging the business climate, it seems that broader input will necessarily produce a better result for everyone. The other disturbing thing about this proposal is that in rank ordering public comments the way it does, the bill sends a clear message that comments by businesses and business associations, even those located within Texas, are not as important as others and will not be given equal weight in agency consideration, as we believe they do today. That message bodes ill for the Texas business climate in general and the drift of public policy away from maintaining and enhancing the conditions that produced the Texas Miracle.
