Request By:
David H. Ashley
Geeral Counsel
Department of Energy
P.O. Box 11888
Lexington, Kentucky 40578
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter of January 9, 1979 which concerns the regulatory authority vested in the Kentucky Department of Energy. Your question is whether the Department of Energy has the authority delegated to it to promulgate a regulation implementing and enforeing "lighting efficiency standards for public buildings and thermal efficiency standards and insulation requirements for new and renovated buildings".
The proposed regulation which you are concerned about is 815 KAR 51:010 which would authorize the Department of Housing, Buildings and Construction to adopt by reference the "Code for Energy Conservation in New Building Construction" and to enforce the standards therein in its review of new construction. The authority for the Department of Housing, Buildings and Construction to promulgate such a regulation is stated in the proposed regulation to come by means of a transfer of authority from the Department of Energy by Executive Order 78-580. Our inquiry is whether the Department of Energy originally has such authority.
The Secretary of the Department of Energy has the authority to "promulgate administrative regulations consistent with the provisions of KRS 152A.011 to 152A.180". KRS 152A.180 (1978). You contend that the proposed regulation, which deals with energy conservation, would come within the purview of the Bureau of Energy Production and Distribution in the Department of Energy. This Bureau has the following responsibilities: for conducting research on the impact of current and future energy supply and demand on the Kentucky economy and perform research on transportation, manpower, materials and other appropriate areas that affect the production of fossil fuels; prepare and maintain a continuous inventory of energy requirements and available supplies and capacities; develop major conservation programs involving all sections of the Kentucky economy and including broad public educational efforts as related to desirable conservation and utilization practices; formulate and update at least annually a contingency plan to cope with any energy shortages which may occur from time to time, and such other functions as delegated by the secretary. KRS 152A.110 (1978).
Within this bureau the relevant unit is the Division of Conservation which, among other things, has the responsibility of "implementation of the Kentucky state energy conservation plans". KRS 152A.110(1).
The authority of the General Assembly to delegate powers to the Department of Energy is not in question here. Rather the issue is whether the Department has the authority to promulgate 815 KAR 50:010, given its stated powers. It is a rule of administrative law that "delegated authority cannot go beyond what is reasonable in accomplishing the purposes of the Act for the administration of which the agency was given the delegation". Ky. State Board of Business Schools v. Electronic Computer Programming Inst., Inc., 453 S.W.2d 534 (Ky. 1970) at 536; Courtney v. Island Creek Coal Co., 474 F.2d 468 (6th Cir. 1973); Dept. For Natural Resources and Environmental Protection v. Stearns Coal and Lumber Co., 563 S.W.2d 471 (Ky. 1978). See Am. Jur. 2d, Adm. Law § 70.
The Department of Energy was created in 1976 and reorganized in 1978. The purpose of the Department as it originally was established was "to develop and recommend programs for the development and utilization of energy in a manner to meet essential human needs while maintaining the Kentucky economy at the highest feasible level". KRS 152A.010(4) (repealed 1978). In addition, it was to be "the state agency with primary responsibility for all nonresearch energy programs not otherwise assigned to existing agencies". Id.
The duties of the Department were set out in KRS 152A.020 (repealed 1978) and included such functions as formulating energy plans, collecting relevant data on energy related subjects, reviewing statutes and regulatory practices, working with other agencies on energy programs, and developing and implementing energy programs. Thus, the authority granted by the General Assembly was broad. However, it was oriented toward research on energy problems and development of relevant programs. This grant of authority did not include powers of enforcement.
When the General Assembly amended KRS ch. 152A in 1978, by rewriting most of the chapter, it did not reformulate the purpose and duties of the Department. Rather, the statement was included that "All functions, powers and duties now vested in the department of energy and the Kentucky center for energy research are hereby transferred and vested in the department". KRS 152A.011(3). Thus the General Assembly did not wish to change the essential purpose of the Energy Department. In addition, although the Department may have a greater variety of duties now, these are still advisory and research oriented. The Department was not given regulatory or enforcement authority.
This conclusion is reenforced when we turn to the section establishing the powers of the Bureau of Energy Production and Distribution. Specifically, the Department, through the Bureau, has the power and responsibility to develop "major conservation programs involving all sections of the Kentucky economy", pursuant to KRS 152A.110; this power is stated to include "broad public educational efforts". Taken together, these words convey the meaning of a broad delegation of power to establish energy programs applicable throughout the state and educational in nature. A similar provision was found in the earlier grant of authority as one of the duties of the Energy Department. KRS 152A.020(8) (repealed 1978).
Taking this duty of the Department in the context of this section and the entire chapter, there is no indication that "major conservation programs" is meant to apply to the enforcement of the specific mandatory building standards of 815 KAR 50:010.
In conclusion, the General Assembly has not granted the Department any enforcement powers under KRS ch. 152A, either as it is now established or in its prior form. Thus the Department does not have the authority under this chapter to promulgate a regulation such as 815 KAR 50:010 which would establish standards of energy conservation for new building construction and would provide authority to the Department to enforce such standards.
If this office can be of further assistance, feel free to contact us.