Obama Rule Expands Met Council Boundaries

Warning: The Obama administration was working hard up until the last minute.

The feds implemented a new rule in the federal register regarding metropolitan planning organizations (MPOs) like the Metropolitan Council on the day before President Trump took office.

The rule would extend the boundaries of the Met Council beyond the seven-county area for federal transportation planning (and related housing issues) only. The Met Council could even theoretically jump the border into Scott Walker territory to encompass Hudson in St. Croix County.

As Randall O’Toole from CATO put it, “MPOs are a creature of the feds. If the state has given the Met Council special powers (such as taxing authority) in a seven-county area, that can’t change. But the transportation planning authority mandated by the feds can extend across more than seven counties if the feds say so.”

The rule was issued by the Federal Highway Administration (FHWA) and was effective as of January 19, 2016. “This final rule revises the transportation planning regulations to promote more effective regional planning by States and metropolitan planning organizations (MPO).”

In other words, the federal government does not want to deal with more than one authority for an urbanized area. Even though this rule was slammed hard during the public comment period by city, county and state officials around the country, the federal government, in the name of “efficiency” decided to ignore concerns about local control and self-governance.

“This rule clarifies that an (MPO) must include an entire urbanized area (UZA) and the contiguous area expected to become urbanized within a 20-year forecast period for the metropolitan transportation plan.”

The feds did change their original plan to make this effective immediately based on the 2010 census data, and instead pushed it beyond the 2020 census. But what is interesting, and puzzling, is that the Met Council is already operating under a Memorandum of Understanding with Wright and Sherburne Counties to do regional transportation planning. The agreement was developed in 2013, and signed in 2014.

The new rule is just catching up to what the Met Council has already been doing in Wright and Sherburne Counties for years.

If the Met Council met the federal requirement that elected officials make up a majority of the Council, rather than all gubernatorial appointees, and had less power, this expansion of MPO boundaries beyond the 7-county area might not be as alarming.

But the governance structure of the Met Council does not meet that requirement. When you combine an unaccountable governance structure with the Met Council’s extraordinary scope of authority, and the Council’s mad grab for power under MSP Thrive 2040, you have an MPO and a regional body that can and does thwart elected officials at the city, county and state level.

This is why the Center has urged the Legislature to review both the governance structure and the scope of authority of the Council. Until both are addressed, Minnesota will suffer from regionalism run amok and all the drama and bad planning that comes from that bad governance model.

The poor governance structure has produced an expensive light rail system that has done nothing to relieve road congestion and a policy that starves the metro area of new road lanes and money for proper maintenance.

So what should Minnesota and other states like Wisconsin do about this? I think I have good news. And it is called the 1996 Congressional Review Act (CRA).

Here is Kim Strassel in the Wall Street Journal:

The accepted wisdom in Washington is that the CRA can be used…against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. Included are biggies like the Interior Department’s “streams” rule, the Labor Department’s overtime-pay rule, and the Environmental Protection Agency’s methane rule.

And I hope this MPO rule.

The CRA clock begins ticking when Congress receives a report from an agency.  In this case, the FHWA submitted its CRA report form after the publication of the final rule.  The report was received by the House on January 3, 2017 , and by the Senate on January 10, 2017 .  So if this all complies with the CRA, the clock began ticking in the House on January 3 and in the Senate on January 10.

We need to urge our Congressional Delegation to use its power to rescind this rule ASAP under the CRA rather than asking Administration to use executive authority.

Here is why. According to the Heritage Foundation:

Many of the CRA-eligible rules could also be rescinded by the new Administration on its own authority without involving Congress. But this would require the agency to complete a notice and comment process under the Administrative Procedure Act, and to identify judicially defensible reasons for repeal. And the resulting changes are certain to get bogged down in the courts for years.

If Congress uses the CRA to block new rules, these hurdles can be avoided. Plus, the CRA provides the additional bonus of barring the promulgation of any “substantially similar rules.”

We do not read the Federal Register just for kicks. We just got lucky. Our friend Kevin Terrell stumbled on this new rule. Think about what you can do to get this on the radar of your representative in Congress.

The CRA clock is ticking.