Oppose HB 1351, Paralyzes Policymakers from Doing their Job

This page reflects updates as of April 10, 2015, at the conclusion of committee hearings for the 2015 Indiana General Assembly; see Section IV which provide the latest information. See Section V to learn about how you can help.

I. Indiana’s Environment: Progress, But Recent U.S. Environmental Disasters Call for Caution

WestVirginiaSpillIndiana’s air and water quality has generally improved over time, but we can’t get complacent. Recent environmental disasters such as the pollution of drinking water for 300,000 West Virginians due to a chemical storage leak and the very recent contamination of Toledo’s drinking water from toxic algae blooms linked to polluted farm field run-off, could happen here in Indiana.

II. Efforts in 2013 & 2014 to Weaken Environmental Safeguards

Governor Pence on his first day in office (January 14, 2013) issued an Executive Order placing a moratorium, with few exceptions, on the enactment of any new regulations.

In 2014, ideologically-minded lawmakers pushed for legislation (HB 1143) that would have made it illegal to pass new environmental rules if they were deemed “more stringent,” i.e., more protective than what the federal EPA requires. This measure, known as the “no more stringent than bill”, did not become law, thanks to an outpouring of opposition from nearly twenty statewide and regional public interest organizations.

Both the Governor’s Executive Order and the No More Stringent Bill stem from the inaccurate view that both federal and state regulatory bodies have been too aggressive in wielding their regulatory authority at the expense of economic growth.

While the U.S. EPA has, for example, acted decisively in recent years to protect our air quality, there are many areas where the EPA has been weak, if not absent. For example, the EPA has not adequately protected the public from the serious pollution threats of fracking, coal ash sludge lagoons, factory farm waste, outdoor wood boilers, and above-ground chemical storage tanks to name a few.

III. Yet Another Threat to Indiana Environment Protections: HB 1351, Introduced in the 2015 Session
HB 1351, as originally filed, was the most sweeping effort ever (to our knowledge) to weaken Indiana policymakers’ ability to act in protecting our environment. Had it stayed in its original form, it would have voided any existing state regulations — whether environmental-related or not — that were not considered to be explicitly authorized by federal or state law. Furthermore, it would have made it illegal for regulators (whether environmental regulators or not) to enact any new regulation unless explicitly authorized by federal or state law. This would have eliminated the multi-decade discretionary authority that executive agencies have long had.

IV. HB 1351, as Amended in House Committee & on the House Floor, is Still a Bill that We Oppose

On Feb. 3rd, HB 1351 was heard by the House Government and Regulatory Reform Committee. Prior to debate on the bill, the committee approved an amendment that removed the bill’s most dangerous provisions, noted in the prior section of this web post. (We believe these dangerous provisions were removed because of needed media scrutiny — see here, here, and here — which HEC and our partners no doubt played a role in helped to generate.)

The bill as amended in committee (it passed out on a vote of 7 to 4) as well as the bill as amended on the Indiana House floor still merit opposition. Here’s why:

1. It is extremely broad in impact.

All regulatory agencies — not just IDEM and IDNR — would be affected. So whether you’re concerned about health (ISDH), the well being of kids (FSSA), community economic development (CEDA), or electricity bills (IURC), you should be following this bill.

2. Its unclear and contradictory legislative language could paralyze decision-making.

HB 1351 could have the added effect of paralyzing agencies like IDEM in carrying out its existing responsibilities under certain EPA programs out of fear of being sued for going beyond what those federal programs require.   For more analysis of this issue, see our final section, “Learn More” below.

3. It is contrary to Indiana’s long-standing commitment to “state’s rights”.

HB 1351 is not consistent with Hoosiers’ long tradition of protecting “state’s rights” — and stands in stark contrast to those conservative ideals — by weakening Indiana’s ability to make its own decisions on how best to protect its people from threats to health and safety. Doing so puts more, not less, power in the hands of the federal government to make those decisions for Indiana.

Weakening the ability of Indiana’s regulatory agencies to deal with serious issues is irresponsible and leaves Indiana vulnerable to not being able to act, in a timely manner, to protect its citizens when the legislature is not in session.

HEC has written a legal and policy analysis of HB 1351.  Read the Executive Summary of this analysis here, and our OpEd which focuses in our core concerns.   If you would like to see a full legal analysis of the bill, contact Kim Ferraro.

V. HB 1351: Likelihood that this Bill Will Not Move any Further this Session

With HB 1351’s passage out of the Indiana House of Representatives, the bill had been assigned to Indiana Senate Tax and Fiscal Policy Committee for a hearing, with Senator Sue Glick as the Senate sponsor.    However, HB 1351 was not heard on the Senate side during the window of time in which House bills are heard in the Senate.

It is our understanding that HB 1351’s author will try to advance this language next legislative session.

VI. Learn More: Further Analysis of #2 Above

HB 1351, in its current, amended form, states that Indiana can only have regulations that are required by federal law or “specifically authorized by state statute”.  What does “specifically authorized” mean?  Indiana has a 6-page lead poisoning prevention statute that gave rise to a 13-page regulation; most of the details in the regulation were specified in the statute.  By contrast, Indiana also has a 2 paragraph statute on landfills that gave rise to a 263-page regulation.  Were the 263-pages on landfills “specifically authorized” in the 2-paragraph statute?   Those 2 paragraphs state that there should be a rule to designate where landfills can be located  and how the waste in them is handled, but they certainly do not contain the specific details that are in the regulation.  It took Indiana agency expert knowledge of appropriate waste handling to write all the details so that Indiana could have proper sanitation in our communities and prevent threats to human health from wastes.  If HB 1351 passes, will our legislature have to write all the details into their bills in the future?