(This piece was originally published on March 9, 2016 in the Indiana Lawyer.)
Manufacturers, agriculture and other big Hoosier industries pegged House Bill 1082 at the top of their legislative agenda this year. So did about 20 environmental, health and public-interest groups that opposed the measure barring Indiana from adopting environmental regulations tougher than federal standards.
“We’ve never put this amount of time and resources into trying to defeat a particular piece of legislation,” Hoosier Environmental Council senior staff attorney Kim E. Ferraro said of the so-called “no more stringent than” bill. “We think it was that dangerous.” Opponents said tying the hands of Indiana Department of Environmental Management regulators could impair their ability to respond to crises such as the drinking water lead contamination in Flint, Michigan.
“Flint had nothing to do with that,” Rep. David Wolkins, R-Warsaw, said of his bill. He said opponents opportunistically used such environmental calamities to gin up worry about the legislation. By his count, Wolkins has championed similar legislation in
at least five or six prior sessions. He said businesses have legitimate concerns about state regulators overreaching with burdensome and costly rules.
Stepping into this fray was Senate Environmental Affairs Committee Chairman Ed Charbonneau, R-Valparaiso, who crafted a compromise both sides agreed they could live with. He stripped the bill by adding amendments that:
• Remove the prohibition on IDEM adopting rules or regulations more stringent than corresponding federal rules;
• Require IDEM to notify the Legislature of any rules it deems more stringent than corresponding federal regulations;
• Prevent any such rules from taking effect until after final adjournment of the following two sessions of the General Assembly.
House Bill 1082 passed the Senate on March 1, and the House concurred with Senate amendments on March 3. “We’ve ended up with a piece of legislation that you had some pretty big dogs on both sides, and they both agreed this is a reasonable solution,” Charbonneau said. “The process has worked.”
Andrew Berger, vice president for governmental affairs and tax policy at the Indiana Manufacturers Association, said the compromise makes sense. “We think that’s a pretty good bar and at least lets all the stakeholders weigh in through the legislative process. While it’s not an outright restriction (on more stringent regulations), it’s the next best thing.”
“There was a lot of pressure on (Charbonneau) to pass it out of committee,” Ferraro said. “That’s why we really ramped up our efforts.” While HEC still opposes the final bill because the group believes there are already ample checks on IDEM’s rulemaking, Ferraro said the legislation was acceptable and reflected something she said is too rarely seen these days.
“There’s a lot of cynicism going around that politicians don’t listen and people’s voices aren’t heard,” she said. “I think this is an example that people’s involvement in the legislative process can make a difference.” HEC issued a statement praising Charbonneau’s leadership after the bill was amended.
Berger said barring a future state regulatory initiative that concerns industry, the compromise legislation “probably addresses the issue for the time being.”
Charbonneau said he knew moving the bill would cause the objections it did. He said he was lobbied hard to pass the bill out of committee by groups including the Indiana Manufacturing Association and Indiana Farm Bureau, as well as trade groups for utilities, energy, builders and other entities. But opponents led by HEC included such diverse interests as the Indiana State Medical Association, the League of Women Voters and myriad environmental, health and public-policy groups.
He found a middle ground after bringing parties together, talking to stakeholders and realizing there were credible concerns on both sides. “We want and expect IDEM to work to ensure we as Hoosiers have a healthy and vibrant environment while remaining appreciative of our heritage – agriculture, industrial, commercial,” he said. “I think we have accomplished that here.”
He said the bill as passed “does not prejudge IDEM at all. It doesn’t prevent them from doing their job. Maybe what this does is make us do our job as a General Assembly a little bit better, paying attention to what’s going on, and if we feel there’s an overreach, address it.”
Wolkins said Indiana has rules that exceed federal minimums, for instance, on confined animal feeding operations and outdoor wood furnaces. But he said past IDEM attempts to start rulemaking that would add numerous pollutants to smokestack monitoring prompted him to seek legislation to check the agency’s authority.
While the amended bill waters down the original, Wolkins said, “that’s the best I could get, so I was willing to take it. … It’s a small step, but I think it will give (IDEM) pause before they go ahead” with rules more stringent than federal regulations. Wolkins also said the legislation in no way impacts IDEM’s authority to respond to emergencies.
Charbonneau said it’s important to note IDEM rulemaking mandates ample public comment, and the agency doesn’t operate in a vacuum. “If you thought that today IDEM came up with a rule and tomorrow they want to implement it, the world doesn’t happen that way,” he said, noting rule promulgation has been known to take eight to 10 years. “In the best of circumstances, you’re looking at a year-and-a-half to two years to develop a rule.”