Can Maryland's Chesapeake Bay Critical Area Commission rewrite its own program development criteria on its own authority?

Plain-English summary

The 1984 law creating Maryland's Chesapeake Bay Critical Area protection program required the Critical Area Commission to write statewide "criteria" for local development programs along the Bay, and gave the General Assembly a one-time veto power over those criteria at its 1986 session before they could take effect. A delegate asked whether the Commission could later amend those criteria on its own, and how the General Assembly itself could amend them. The Attorney General concluded that although agencies ordinarily can amend their own rules, the unusual legislative-veto process built into the 1984 law showed the General Assembly meant for the criteria to stay essentially fixed once approved, so the Commission could only make amendments that would not significantly change the criteria's substance. Any significant change would require the General Assembly to pass a new statute, not just a resolution.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could an agency's normal power to write regulations also let it substantially rewrite them later?
Not necessarily, according to this opinion. The Attorney General concluded that ordinarily an agency that can adopt rules can also amend them, but here the Chesapeake Bay Critical Area Commission's amendment power was cut back because the statute's structure, including a one-time legislative veto over the original criteria, showed the General Assembly intended the approved criteria to remain essentially fixed.

What kind of changes could the Commission still make to its criteria without going back to the Legislature?
The opinion concluded the Commission retained authority to adopt amendments that would not significantly change the substance of the criteria, such as correcting evident errors or making minor adjustments suggested by experience administering the program.

Could the General Assembly itself change the criteria by passing a resolution instead of a full bill?
No. The opinion concluded that because the criteria had the force and effect of law once adopted, only a statute, subject to the Governor's veto, could amend them; a joint resolution could not.

Background and statutory framework

Chapter 794 of the Laws of Maryland 1984 directed the Chesapeake Bay Critical Area Commission to adopt, by regulation, statewide criteria for local Critical Area program development, after holding at least six regional public hearings and consulting with affected local jurisdictions. NR §8-1808(d)(1). Uncodified Section 3 of Chapter 794 added an unusual condition: the criteria could not be implemented unless the General Assembly, at its 1986 session, passed a joint resolution affirming that the criteria were reasonable and acceptable, or else the Commission would have to revise and resubmit them for the 1987 session. The General Assembly did pass such a resolution in 1986 (House Joint Resolution No. 17 and Senate Joint Resolution No. 9), and local programs proceeded to develop under the approved criteria.

The opinion reasoned that while an agency ordinarily has the power to amend rules it is empowered to adopt, see Department of Transportation v. Armacost, that general rule yields where the statutory framework shows a contrary legislative intent, "[t]hat which necessarily is implicit in a statute is as much a part of it as that which is expressed," quoting Guardian Life Ins. Co. v. Insurance Comm'r. Here, the 1984 law's legislative-veto mechanism, described in the Attorney General's own 1984 bill review letter as "conducting legislative oversight through a legislative veto," showed the General Assembly wanted its own imprimatur on the criteria as adopted, a purpose that would be undermined if the Commission could later make wholesale substantive changes. The opinion also pointed to the cooperative structure of the program, under which local governments had to develop programs meeting the criteria within fixed deadlines, as further evidence the criteria were meant to stay stable once implemented. Balancing this against the "absurd results" of denying the Commission any amendment power at all, the opinion concluded the Commission could adopt non-substantive amendments (fixing errors, making minor adjustments) but not significant substantive changes, which would require the General Assembly to act by statute, as it later did in Chapters 602, 603, and 604 of the Laws of Maryland 1986.

Citations

Statutes:

• NR §8-1801(b)(2) (cooperative state-local Critical Area program purpose)
• NR §8-1806(1) (Commission's rulemaking authority)
• NR §8-1808(d)(1) (Commission's duty to adopt program development criteria)
• NR §8-1808(d)(2) (Joint Committee on Chesapeake Bay Critical Areas review)
• NR §8-1809(a), (c), and (f) (local program development deadlines)
• NR §8-1809(g) and (h) (local program amendment procedure)
• NR §8-1809(i)(2) (local programs must meet the criteria)
• NR §§8-1808.1, 8-1808.2, and 8-1808.3 (1986 statutory amendments to the criteria)
• Chapter 794, Laws of Maryland 1984 (creating the Critical Area program and criteria requirement)
• Chapters 602, 603, and 604, Laws of Maryland 1986 (General Assembly's own amendment of the criteria by statute)

Cases:

• Department of Transportation v. Armacost, 299 Md. 392, 423-24 (1984)
• Guardian Life Ins. Co. v. Insurance Comm'r, 293 Md. 629, 643 (1982)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CHESAPEAKE BAY CRITICAL AREA COMMISSION

Program Development Criteria—Amendment—Commission May Amend Only If No Significant Change In Substance Of Criteria—General Assembly May Amend By Statute.

March 10, 1987

The Honorable Daniel M. Long
Maryland House Of Delegates

You have requested our opinion concerning amendment of the program development criteria of the Chesapeake Bay Critical Area Commission. Specifically, you pose two questions:

1. Does the Commission have authority to amend the criteria?
2. By what means may the General Assembly amend the criteria?

For the reasons stated below, we conclude as follows:

1. The Commission does not have authority to adopt amendments to the criteria that would change their substance significantly. However, it does have authority to adopt amendments that would not effect a significant substantive change.
2. The General Assembly may amend the criteria, or direct that the Commission amend them, only by means of a statute.

I
Program Development Criteria

Part of the General Assembly's purpose in enacting Chapter 794, Laws of Maryland 1984, was to "implement the [Chesapeake Bay] Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria." §8-1801(b)(2) of the Natural Resources Article ("NR" Article). These "State criteria" were adopted as a regulation by the Chesapeake Bay Critical Area Commission pursuant to the following express statutory direction:

"The Commission shall promulgate by regulation on or before December 1, 1985, criteria for program development and approval, which are necessary or appropriate to achieve the standards stated in subsection (b) of this section. Prior to developing its criteria and also prior to adopting its criteria, the Commission shall hold at least six regional public hearings .... During the hearing process the Commission shall consult with each affected local jurisdiction." NR §8-1808(d)(1).

The Commission also acted under its power "[t]o adopt regulations and criteria in accordance with Title 2, Subtitle 5 (Joint Committee on Administrative, Executive and Legislative Review) and Title 10, Subtitle 1 (Administrative Procedure Act) of the State Government Article." NR §8-1806(1).1

Chapter 794 also provided for two elements not ordinarily a part of an agency's rulemaking process. First, the statute created a joint legislative committee, the Joint Committee on Chesapeake Bay Critical Areas, and directed the Commission to "meet with the Joint Committee . . . periodically as the Committee requests to review development and implementation of the criteria for program development." NR §8-1808(d)(2). Moreover, uncodified Section 3 of Chapter 794 prescribed a specific oversight role for the General Assembly between the Commission's adoption of the criteria and their implementation:

"[T]he criteria promulgated by the Commission . . . may not be implemented unless the General Assembly at the 1986 Session affirms by joint resolution that the criteria are reasonable and acceptable to accomplish the goals of this subtitle. If a joint resolution of affirmation is not enacted by the General Assembly at the 1986 Session, the criteria shall be revised by the Commission and resubmitted to the General Assembly on the first day of the 1987 Session and the effective date of the criteria shall be delayed until June 1, 1987."

At the 1986 Session, the General Assembly resolved that "the criteria for local area program development adopted by the Chesapeake Bay Critical Area Commission are hereby affirmed as being reasonable and acceptable to accomplish the goals of the Chesapeake Bay Critical Area Protection Program." House Joint Resolution No. 17 and Senate Joint Resolution No. 9, reprinted in Laws of Maryland 1986 at 3578-80. Thus, the criteria have been implemented and local programs are under development pursuant to them.

II
Commission's Amendment Authority

A. Introduction

Ordinarily, an agency empowered to adopt rules has the correlative power to amend them. Department of Transportation v. Armacost, 299 Md. 392, 423-24 (1984). However, if the particular statutory framework within which the Commission adopted the criteria evinces a legislative intent to the contrary, this general principle must give way.

In our view, Chapter 794 manifests a clear intention to restrict the Commission's amendment authority, albeit that this intention is implicit in the statutory scheme rather than expressed in so many words. "That which necessarily is implicit in a statute is as much a part of it as that which is expressed." Guardian Life Ins. Co. v. Insurance Comm'r, 293 Md. 629, 643 (1982).

B. Legislative Approval

As discussed in Part I above, Chapter 794 imposed two conditions on the adoption of the criteria that are not part of the normal rulemaking process. First, the criteria were made subject to consultative review by a specially created joint committee. NR §8-1808(d)(2). More importantly, Section 3 of Chapter 794 reserved to the 1986 Session of the General Assembly a veto power over the criteria. This office's bill review letter on Chapter 794 (then Senate Bill 664) described the Section 3 oversight mechanism as follows:

"The particular reservation of power in Senate Bill 664 presents a classic case of conducting legislative oversight through a legislative veto. Manifestly, the General Assembly could have prescribed the criteria for the development of environmental programs for the local jurisdictions. As the General Assembly evidently felt that the development of appropriate criteria for these programs would involve a number of technical considerations, it delegated the power to develop the criteria to the Critical Area Commission which can call upon various experts in the Executive Branch for advice. By reserving to itself the power to disapprove the criteria and to delay the implementation of revised criteria, the Legislature is merely conducting oversight over the exercise of legislative power delegated to the Executive." Bill Review Letter (Senate Bill 664) from Attorney General Sachs to Governor Hughes, at 2 (May 14, 1984).

In light of this review requirement, we believe that the General Assembly did not intend to authorize the Commission to amend the criteria at will. One essential purpose of the legislative veto mechanism was to place the General Assembly's imprimatur on the criteria if, as, in fact, happened, the General Assembly concluded "that the criteria are reasonable and acceptable to accomplish the goals of" the legislation. This mechanism for seeking legislative consensus about the criteria would be largely defeated if the Commission were empowered to make wholesale changes in the newly approved criteria.

To be sure, Section 3 also provided for the situation in which that legislative sanction was not obtained. Had the General Assembly failed to pass its resolution of approval in the 1986 Session, the criteria, after revision to take account of legislative criticism and resubmission in the 1987 Session, could have taken effect even if there were no legislative action.2 In this circumstance, subsequent amendment of the criteria by the Commission would not do violence to the legislative approval of a specific set of criteria, for there would have been no approval.

Nevertheless, provision for this fallback procedure, evidently designed to prevent an indefinite delay in the implementation of the criteria, does not vitiate the essential point: Chapter 794 gave the General Assembly an unusual role in the development of the criteria, in the expectation that the criteria would be ratified by the General Assembly. This purpose would be defeated if the Commission could simply amend significantly the criteria that had indeed achieved this legislative consensus.

C. Effect on Local Programs

The power of the Commission to make significant changes in the substance of the criteria after their implementation would also upset the cooperative endeavor between the State and local governments that is at the heart of the legislation. See NR §8-1801(b)(2). The criteria establish the ground rules for the development of local programs. Local governments must know what the criteria are, because they must develop programs that meet the criteria. NR §8-1809(i)(2). And, they must do so within fixed time limits. NR §8-1809(a), (c), and (f). In our view, this process reflects the General Assembly's intent that the criteria, once implemented, are not to be changed in ways that would vitiate the efforts of local governments to develop complying programs.3

D. Permissible Amendments

For all of these reasons, we conclude that the Commission is without authority to effect significant changes in the substance of the criteria. At the same time, absurd results can readily be envisioned if the Commission were without authority to amend the criteria in any way. Were that so, the Commission could not then correct evident errors or make the kind of minor changes that experience under the criteria might suggest are necessary.

If, on the other hand, the Commission's rulemaking authority were construed to permit limited amendments to the criteria, that is, amendments that would not significantly change the substance of the criteria, the Commission would be able to exercise the grant of authority to it without compromising the overall legislative intent that the criteria remain essentially fixed. Accordingly, we conclude that the Commission, acting under the grant of rulemaking authority in NR §8-1806(1) and proceeding in accordance with the Administrative Procedure Act, may adopt amendments to the criteria that would not effect significant changes in their substance.

III
General Assembly's Amendment Authority

In an earlier letter, Assistant Attorney General Linda H. Lamone advised that, "pursuant to its plenary powers, the General Assembly may amend the substantive law or enact new legislation to effectively modify the criteria or other aspects of the Chesapeake Bay Critical Area protection program. This would be the only way in which it [may] amend the criteria adopted by the Commission." Advice Letter to Senator Simpson, at 4 (August 21, 1985). Ms. Lamone, with the concurrence of the Attorney General, concluded that the legislative review mechanism in Section 3 of Chapter 794 authorized, for the 1986 Session only, complete acceptance or complete rejection of the criteria by joint resolution. Nothing in Chapter 794 authorized amendment of the criteria by means of a joint resolution, then or later:

"[The Attorney General's Office] approved the bill for constitutionality assuming that the power of the 1986 General Assembly was limited to accepting or rejecting the proposed criteria in their entirety as presented in the form of a joint resolution. This assumption was premised on the well established principle that so-called legislative rules and regulations, such as those which will embody the criteria, have the force and effect of law and any amendment of them by the General Assembly constitutes the exercise of its lawmaking authority. Moreover, it is well established that the General Assembly cannot amend or repeal a law by joint resolution, as such resolutions do not have the force and effect of law . . . Thus, the only constitutionally permissible method by which the General Assembly may amend legislative rules is through the enactment of a statute that is subject to the veto of the Governor." Advice Letter at 3-4 (citations omitted).

We agree with this conclusion. The General Assembly has authority to amend the criteria of the Chesapeake Bay Critical Area Commission, just as it may amend the regulations of any agency. However, to do so, it must enact a statute.4

IV
Conclusion

In summary, it is our opinion that:

1. The Commission does not have authority to adopt amendments to its program development criteria that would change their substance significantly. However, it does have authority to adopt amendments that would not effect a significant substantive change.
2. The General Assembly may amend the criteria, or direct that the Commission amend them, only by means of a statute.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 The criteria are codified at COMAR 14.15.01 through 14.15.11. See 12 Md. Reg. 1953 (September 27, 1985) (proposed regulation); 12 Md. Reg. 2352 (November 22, 1985) (final regulation).

2 Language in Section 3 that would have required "affirmation by joint resolution" during the 1987 Session was deleted by amendment.

3 In this regard, it is noteworthy that the statute expressly provides a means by which a local program may be amended. NR §8-1809(g) and (h). The statute contains no reference to amendments of the criteria.

4 The General Assembly did precisely that in Chapters 602, 603, and 604, Laws of Maryland 1986. See NR §§8-1808.1, 8-1808.2, and 8-1808.3.