When Dr. Maurice Goddard and others set about designing the commonwealth of Pennsylvania’s first environmental agency in 1970, it probably seemed innovative to create an “independent” body to promulgate regulations for the Department of Environmental Resources (DER). Thus came into being the Environmental Quality Board (EQB), a 20-member body made up of 11 government agency representatives, four legislative representatives and five citizens designated by the Citizens’ Advisory Council. Unlike almost all other executive agencies, DER (now the Department of Environmental Protection, or DEP, would not promulgate its own regulations. That job would fall to the EQB, which was assigned the power and duty “to formulate, adopt and promulgate such rules and regulations as may be determined by the board for the proper performance of the work of the department,” 71 PA. STAT. ANN. Section 510-20(b) (West 2017) (emphasis added).

Now, nearly 50 years later, one may question whether the EQB is discharging its duties in the manner envisioned by its creators, or ever has. While the EQB has several other duties, the promulgation of regulations has been its primary role. However, the board has had little or no staff throughout its history, usually limited to one “regulatory coordinator.” DEP staff drafts (i.e., formulates) proposed regulations. DEP staff then drafts the comment/response document, prepared in response to public comments, without conferring with the EQB. Ultimately, it is even DEP staff that appears before the Independent Regulatory Review Commission (IRRC) to explain or defend the proposed regulations. Moreover, at EQB meetings, the attorney acting as legal counsel to the EQB is an attorney from the Bureau of Regulatory Counsel—an office within the DEP Office of Chief Counsel. EQB members usually receive regulations and related materials, which are sometimes voluminous, about two weeks before a scheduled meeting, where the agenda is controlled by DEP, and DEP staff explains the content and purpose of the proposed regulations. One can legitimately question how much independent analysis EQB members, who have other duties in their “day jobs,” can perform. Suffice to say, it is clear that the EQB does not actually “formulate” regulations.