Shifting Burdens and Skirting Responsibilities

Memo Withdrawn


This bill provides special interests with a new path to thwart regulations meant to protect the environment and public health.

Special interests often challenge regulations because they don’t want to comply with their requirements. Under current law, if a party wants to challenge a regulation, they must initiate a special proceeding in court pursuant to Article 78 of the Civil Practice Law and Rules. It is then the plaintiff’s burden to show that the agency that adopted the rule acted in a manner that was arbitrary and capricious or an abuse of discretion, or exceeded its authority.

This bill shifts the burden of proof from the plaintiff to the agency, completely rewriting the concept of judicial review. It is the court’s job and court’s job alone to determine whether an agency in the executive branch has done something unlawful. If the Legislature is unsatisfied with a regulation or the court’s decision to uphold the regulation, it can repeal or amend the legislation that authorized that regulation in the first place. The Administrative Regulations Review Commission, comprised of members of the Legislature, can also submit comments to the agency before the rule is adopted.

This bill lets those members of the Administrative Regulations Review Commission substitute the court’s judgment for their own. Under this bill, if legislators think that a regulation is unreasonable, then their opinion will alter court procedure in favor of special interests who challenge the regulation in court. This fundamentally changes any subsequent judicial review of the agency’s action.

This bill is exceedingly poor policy because it interferes with the well-established separation of powers between the legislature, the executive, and the judiciary. 


This bill amends the State Administrative Procedure Act to allow the Administrative Regulations Review Commission file an objection to all or a portion of a proposed or adopted rule. If a plaintiff later challenges the regulation in court, then the burden of proof is on the agency to defend the regulation, rather than on the plaintiff to show that the agency acted unlawfully.

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