Breaking with Sununu, Legislature overrides veto on administrative rules process • New Hampshire Bulletin

When New Hampshire state agencies seek to pass new administrative rules, they must hold public hearings and hear suggestions. But they aren’t required to follow those suggestions, and if they choose not to, they do not need to give a reason why.

That will soon change when a new law takes effect to require state departments to give a detailed explanation for why they chose to ignore public comments. On Thursday, lawmakers overturned Gov. Chris Sununu’s veto of the legislation, House Bill 1622, ensuring that it will take effect in December. 

It was a rare action, one of only a handful of vetoed bills that lawmakers have overturned in Sununu’s eight years in office.

And it represented a clash between the legislative and executive branch over day-to-day duties, in which both Republican and Democratic lawmakers came together.

Sununu argued in August that House Bill 1622 would create too many burdens on state employees and require increased staff time to meet the new demands. Lawmakers countered that the bill was important to increase accountability by state agencies. 

One expert hailed the decision. Adam Finkel, who spent years as the chief rule writer at the federal Occupational Safety and Health Administration, said the bill makes long overdue changes. And he rejected Sununu’s argument that it would substantially increase the burden on agencies. 

“On the federal level, we’ve been writing reasoned response documents for decades, and it might be slightly more expensive, but it’s money well spent, because the people deserve to have their bureaucrats explain themselves,” Finkel said in an interview with the Bulletin Thursday. 

The vote was part of “Veto Day,” the day each fall when the Legislature reconvenes to take up any bills vetoed by the governor. This year, Sununu vetoed 15, but HB 1622 was one of only two that garnered the two-thirds support in the House and Senate necessary to overturn it. 

The second bill, House Bill 1293, imposes new restrictions on fertilizers in an effort to curb cyanobacteria in the state. Sununu vetoed it after saying it would be an unfair burden on private property owners who are unwittingly using fertilizers containing phosphorus near storm drains. But House and Senate lawmakers overturned the veto, and the bill will take effect Jan. 1. 

Several other bills came close, clearing the 66 percent threshold in the House for an override but falling short in the Senate. Here’s a breakdown of what happened Thursday. 

A push for transparency

HB 1622 makes a number of changes to a consequential – and often overlooked – component of state government. 

When the Legislature passes laws that establish new programs for executive branch agencies, those agencies must often fill in gaps in the law with rules that cover the minutiae of how to carry out the new directives. Those rules are open to a public comment period and must also be approved by the Joint Legislative Committee on Administrative Rules, or JLCAR, a bipartisan panel of House and Senate lawmakers. 

Already, state agencies must release a report explaining what, if any, changes they make to their proposed rules after the public comment. But HB 1622 requires them to also address the public comments they received in that report.

If the agency incorporates public feedback into their final decision, they must now note that. If it ignores any feedback, it must indicate that it did so, and “provide a detailed explanation that includes the facts, data, interpretations, and policy choices that justify why the adopting agency did not amend the rules.”

The bill also requires each agency’s director of legislative services to publish all of the agency’s final rules on its website, and it establishes new deadlines for agencies to turn around the publishing of the rules.

It will take effect sometime in December, or 60 days after it is formally enrolled this month, according to House Clerk Paul Smith. 

In his veto message, Sununu said the bill “would substantially increase the burden on executive agencies when promulgating rules without providing financial support to do so.”

“Public input is essential to good public policy, however the burdens created by this legislation are overly taxing for a minimal amount of public benefit,” Sununu said.

Neither the House nor Senate lawmakers commented on the bill before voting to override the veto Thursday. But in previous comments in May, Sen. Howard Pearl said the bill “will enable greater transparency in the rulemaking process. It will also enable an easier process for the public to weigh in on pending rules.”

House attempts to save bills

In a few cases, the near-evenly divided House voted to override Sununu’s vetoes, only for the vetoes to be sustained in the Senate. 

In one example, the House overturned Sununu’s veto of House Bill 1415, which would have created liability for PFAS-contaminating facilities. Sununu vetoed that bill because he said it clashed with a different bill that he did sign that creates “strict liability” for PFAS polluters, but that critics said provides fewer protections. 

“HB 1415 addresses the need to hold PFAS polluters accountable for the immense cost they create,” said Nancy Murphy, a Merrimack Democrat. “In Merrimack alone, we have spent millions of dollars to remove a company’s PFAS from our drinking water. That this financial burden has been placed upon taxpayers who are already bearing the health costs is absolutely unjust, and it should be illegal.” 

Despite the House overriding the veto, the Senate voted to uphold it. 

In another case, the House overrode Sununu’s veto of House Bill 274, which would have required state agencies to pay for attorney’s fees if it enacted a rule illegally, without legislative approval, in the case of any legal action. 

But the Senate quashed the override in an 11-12 vote.

The House flipped Sununu’s veto of House Bill 1581, which would allow alternative treatment centers – therapeutic cannabis dispensaries – to operate additional cultivation locations, including greenhouses, with approval from the Department of Health and Human Services. 

The Senate later upheld that veto, killing the bill.

Many bills fall

It was much more common Thursday for the Legislature to fail to secure enough votes for even a partial override. In some cases, the Senate voted unanimously to pass a bill last spring, only to vote along party lines to sustain Sununu’s veto of that bill on Thursday.

Here are the bills that fell on the first vote. 

• The House failed to overturn Sununu’s veto of House Bill 194, which would have required the state Division of Historical Resources to publish a list of New Hampshire’s historical markers online, and would have required legislative approval of new historical markers. 
• The House fell short of overriding the governor’s veto of House Bill 396, which would have rolled back some gender identity anti-discrimination protections established in 2019 and allowed government entities and private businesses to enforce gender separations in bathrooms, locker rooms, prisons, sports teams, and other venues. 
• The House did not override Sununu’s veto of House Bill 1093, which would have barred school districts from imposing mask mandates. In his veto message, the governor said the legislation infringed on local control. “Big government is never the solution, and neither is a one-size-fits-all approach,” he said.
• The House voted to sustain Sununu’s veto of House Bill 1187, which would have prohibited municipalities from using lease agreements to fund any building or facility improvements that become permanent fixtures of that building. 
• The House did not overturn Sununu’s veto of House Bill 1233, which would have allowed animal chiropractors to practice without getting a veterinary license, as long as they obtained a certification from a recognized national animal chiropractic program. 
• The Senate voted to uphold Sununu’s veto of Senate Bill 63, which would have tweaked the eligible scenarios for towns to make regulations for the protection of public health. Sununu had vetoed it because he said the wording of the bill was confusing and that the bill would inject uncertainty during times of emergency, such as a pandemic. 
• The Senate voted 23-0 to sustain Sununu’s veto of Senate Bill 318, which sought to make the manufactured housing installations standards board and the board of examiners of nursing home administrators into advisory boards.
• The Senate failed to override Sununu’s veto of Senate Bill 501, which would have allowed noncitizens who are lawfully present in the U.S. to get New Hampshire driver’s licenses, in a party-line, 10-13 vote.
• The Senate fell short of overturning the veto of Senate Bill 507, which would have extended the three-year time limit for a convicted person to request a new trial in the case of newly discovered evidence, new or additional forensic testing, or “new scientific understanding that would have been material for the fact finder.” The vote to overturn was 10-13.
• The Senate also voted against overturning Sununu’s veto of Senate Bill 543, which established a state “environmental adaptation, resilience, and innovation council.” 

Annmarie Timmins contributed to this report.