The West Virginia sunrise reports in our dataset are consistently rigorous, likely thanks to a sunrise law that requires a two-step review and some of the most detailed inquiries of any state into occupational harms and proposed regulations’ costs.
West Virginia enacted its sunrise law, which covers both health and non-health occupations, in 1998, making it one of the most recent in our dataset. The law’s preamble expressly acknowledges the importance of preserving open occupational entry while also requiring a high standard of harm to justify regulation. It states: “[I]t is the policy of this state that: (1) The right of an individual to pursue a lawful occupation is a fundamental right; (2) Where the state finds it is necessary to displace competition, it will use the least restrictive regulation to protect consumers from present, significant, and substantiated harms that threaten public health and safety.”
West Virginia’s sunrise law puts the onus on proponents to demonstrate the need for new regulation by filing an application with the Legislature’s Joint Standing Committee on Government Organization. 2
This application initiates sunrise review. Any interested party can file an application, provided it is accompanied by a statement of support signed by 10 members of the occupation. However, most—61%—are filed by industry insiders. There is no application fee.
Applications are referred to the Office of the Legislative Auditor’s Performance Evaluation and Research Division. PERD has nine months to conduct its review and produce its report.
To justify regulation, West Virginia’s sunrise law requires “[e]vidence, if any, of present, significant, and substantiated harms to consumers in the state.” This is among the highest standards of harm in our dataset. PERD must also evaluate “the effects of legislation on opportunities for workers, consumer choices and costs, general unemployment, market competition, governmental costs and other effects.” West Virginia’s law also requires PERD to recommend the least restrictive appropriate method of regulation that would protect the public. To this end, the law provides a list of regulatory alternatives to licensure.
After PERD submits its report to the Joint Standing Committee, the law allows the Committee to hold public hearings and produce its own report, with its own recommendations, including those for least restrictive regulations, for submission to the Legislature along with PERD’s report. This study considers only PERD’s reports. The Legislature is required to enact least restrictive regulations. Of course, the sunrise law cannot pre-empt legislative decisions, so this provision is nonbinding.
West Virginia’s strong sunrise law requires careful consideration of evidence of past harm from an occupation as well as the costs of proposed regulations. And in fact, West Virginia’s sunrise reports are rigorous, consistently using independent research and analysis to understand occupations and the need, or lack thereof, for regulation. Nevertheless, the state’s reviews tend to recommend licensure more often than states with similarly strong laws or reports, possibly because PERD’s placement within the legislative branch leaves the process susceptible to politics.
Licensure Was Frequently Sought and Enacted More Often Than Recommended
Summary of West Virginia’s Sunrise Reviews, 1999–2017
Notes: A distinct license is a separate license for an occupation already licensed under another, usually broader, occupational category. A recommendation of no new regulation means just that; a recommendation to maintain or amend license refers to a recommendation to reject new regulations (such as a distinct license) in favor of keeping an existing license, with or without amendments. A legislative outcome of no new regulation means no new regulation of personal qualifications; the legislature may have enacted other regulations. An outcome of broader credential means the legislature opted to sweep the occupation into a broader licensure, certification or registration scheme. Where a state reviewed an occupation more than once, we are counting only the legislative outcome as of 2018.
Occupations Licensed Without Supporting Recommendations
Fire Damper Technicians
Fire Sprinkler Fitters
Motor Vehicle Salespeople
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