This bill establishes a new framework for the review of decisions and rules made by the Department of Environmental Services (DES). It specifies that the burden of proof is on the party seeking to set aside an order or decision of the commission, and that the order or decision can only be set aside for errors of law or if it is unjust or unreasonable. The bill also outlines the standards for reviewing orders and decisions of the DES, including determining the validity of agency action based on the standards in place at the time the action was taken and granting relief if the order or decision violates constitutional provisions, exceeds the agency's statutory authority, or is arbitrary or capricious. The bill also establishes a similar framework for reviewing the validity or applicability of rules adopted by the DES.

The fiscal impact of this bill is indeterminable. The Department of Environmental Services cannot predict which decisions might be appealed or impacted by the changes in this bill, so it cannot determine the fiscal impact. The bill also provides for declaratory judgment in the Merrimack County Superior Court on the validity or applicability of rules adopted by the DES, but the Department of Justice has not provided information on the fiscal impact. The Department of Justice does note that the bill is inconsistent with other provisions of law.

This bill proposes changes to current law regarding the Department of Environmental Services and the Department of Justice. It would allow individuals and organizations to have their own independent counsel at the Department of Justice for matters related to the Department of Environmental Services. The decisions made by these independent councils would be heard by the Supreme Court, rather than the Department of Environmental Services. The bill also establishes a new cause of action and declaratory judgment procedure. The Department of Justice anticipates that this may lead to additional litigation and appeals, which could result in increased costs. The Judicial Branch states that it is not possible to estimate how this change in law would impact the number of court filings, but it is possible that a lower standard of deference may result in additional litigation. The bill has been reviewed by the Department of Justice, Environmental Services, and the Judicial Branch.

Statutes affected:
Introduced: 541:13, 541-A:24