While most of the changes made to Oklahoma’s medical cannabis program occur through the Legislature, J. Kyle Davis explains how and why state agencies can make rules without public input.
The passage of State Question 788 marked a dramatic shift in Oklahoma’s legal treatment of cannabis and ushered in a new regime in charge of overseeing the Oklahoma medical cannabis program — Oklahoma Medical Marijuana Authority, or OMMA. First, however, a set of early emergency rules drew the ire of many of the 500,000 voters who came out to pass 788 into law in Oklahoma. When smokable cannabis was banned by Oklahoma State Board of Health, plenty of upset commentators asked how or why a group of doctors was able to essentially override what they saw as the will of the people. And now, as new changes are being promulgated via proposed permanent rules, what opportunities, if any, do local businesses and Oklahoma citizens have in guiding the decision of policymakers that don’t face the threat of accountability via democratic election?
The intricacies of both rulemaking procedures and others are a part of the administrative law framework, one that uses the legislative power specifically entrusted to the government through elections but delegated to other unelected officials who work in government agencies. Federally, legislation empowers administrative agencies to act and provides guidance on the scope of an agency’s authority. Whether a particular agency exceeds this grant of authority or acts contrary to its stated goals or established evidence is often the subject of lawsuits against the federal government. In Oklahoma, however, our Constitution creates this power for agencies to act outside the proper branches. So while Article Four of the Oklahoma Constitution makes clear that each of the three branches of government are not to exercise powers properly held by the others, section six of Article Twenty-Five creates the Legislature’s authority to create departments to faithfully administer and execute all laws enacted by the body. Thus, an agency entrusted by the Legislature can create rules, at least as long as they are not contrary to that law that they are further delineating.
The rules that apply to administrative agencies are generally governed by the Oklahoma Administrative Procedures Act along with the Oklahoma Open Meeting Act and the Oklahoma Open Records Act. The primary purpose of handing down this power to make rules is one of pragmatism; often, members of the Legislature don’t have specialized knowledge to provide guidance in areas outside their expertise. For example, the Legislature might want to limit emission of a certain contaminant into the environment after it is shown to cause health problems to people in the vicinity. It would be the rare elected official who would possess the requisite scientific knowledge to make a proper determination of how many parts per million cross the threshold into a danger to the public. To properly address this problem, they therefore can delegate some of their authority to a body suited to make that determination — like the Environmental Protection Agency, which is strategically staffed with scientists with expertise in the minutiae of the field so that they might more specifically address the goals of the Legislature.
When Oklahoma State Board of Health met to create the now-infamous rules soon after passage of 788, they did so under emergency rulemaking procedure. This can only be done when they deem an imminent peril exists to public health, safety or welfare or a compelling public interest requires emergency rules. Administrative agencies can then create rules without notice to the public or a hearing. At that point, the governor has the option of approving or disapproving the emergency rules. The governor approved those emergency rules, but the ban on smokable cannabis never took effect. That’s because before a formal challenge was underway, Attorney General Mike Hunter issued guidance to the Board of Health that stated it had promulgated rules beyond its statutory authority. That authority is the limit of the Legislature’s granted power under which administrative agencies may act, and Hunter determined that it exceeded its limit by imposing new rules and straying from the plain meaning of the words in 788. Had he not, many businesses and citizens were preparing to challenge the agency action as well — but those rules might have very well dictated the state’s regulatory scheme for medical cannabis until the Legislature passed law that said otherwise.
The other major function of administrative law is to provide something similar to a judicial function, or an administrative hearing. Much in the way an administrative rulemaking mirrors the executive function, an administrative hearing functions as an adjudicating body, but often without all the protections afforded to parties in a standard judicial setting. Sometimes this is as simple as a paper hearing, where an affected party can submit a written explanation of their position, all the way up to a more formal hearing in front of a quasi-judicial official acting as a judge. A notice and comment is used after a rulemaking, like the permanent rules that were recently proposed by the Department of Health. The scope of involvement from affected parties depends on the type of rulemaking, and in the case of the new proposed cannabis rules, business entities that will bear expenses if these rules take effect may provide data on their impact on direct and indirect costs. The window to do so is open until March 7, and participating businesses must submit this data to the Agency Rules Liaison.
Ultimately, it can be difficult to know what steps a company should take when an administrative agency acts and it creates issues for the business. Often at issue is whether the claimant is being deprived of an interest that rises to the level that would require a hearing of some sort. In the case of these new rules, the threat of increased costs to businesses affords them a chance to be heard. A prospective interest, however, is typically not enough to trigger a formal hearing, while deprivation of a concrete and individualized property right, for instance, would allow for some level of recourse.
Proper guidance in heavily regulated industries like cannabis requires precise knowledge of administrative procedures. And though the cannabis regulatory scheme is under an administrative framework, there are also important intersections with more established agency oversight, like in agriculture — another heavily regulated sector. This is also true of the environmental concerns related to cannabis-waste management and processing byproducts as well as public health in relation to food product manufacturing. The framework through which the industry is regulated can be confusing, and a background in the procedures that govern it are essential to staying on top of the current rules and guiding businesses through coming changes.