An Update on HB 1100: 3/16/22
While House Bill 1100 was denied a vote in the Senate, language from the bill resurfaced and was added to HB 1211. The following provisions from HB 1100 were added to HB 1211:
- The requirement to update rules every 4 years (rather than every 7 years)
- The requirement that all emergency rules need to be vetted by the Attorney General
Thanks to your calls and emails, HEC’s efforts, those of our partners’, and the Holcomb Administration’s own efforts, Governor Eric Holcomb vetoed HB 1211! Please thank the Governor for his foresight at email@example.com.
An Update on HB 1100: 2/24/22
On February 24th, 2022, House Bill 1100 was denied a vote in the Senate Commerce and Technology Committee, and appears to be dead. We say “appears” to be dead because there’s always a chance that the language could be resurrected in the final weeks of the session, but we are cautiously optimistic.
Thank you to everyone who called or emailed their state senators, and those who traveled–in some cases twice–to attend the committee hearing!
Paralyzing State Agency Action
Under the executive branch, Indiana’s state agencies have experience in interpreting and enforcing Indiana’s laws. HB 1100 would have significantly limited our state agencies’ ability to adopt timely and appropriate state standards to protect public health and the environment.
At its core, HB 1100 would have:
- Added new burdens for agencies in adopting and renewing their administrative rules
- Expanded legislative involvement in the executive branch role in implementing state laws
- Included “no more stringent than” language that would prevent the state from adopting rules that are more stringent than corresponding federal rules
HB 1100 was an astonishingly far-reaching with the potential to constrain all state administrative agencies, boards and commissions. This would have no doubt limited executive branch authority to shape public policy on a variety of fronts and would require a part-time, citizen-led legislature to micro-manage state public policy on a vast scale. On the environmental front, limiting the authority of state agencies that play such a vital role in protecting public health, disadvantaged populations, and our environment was of particular concern.
“No More Stringent Than”
The term “no more stringent than” was not defined in the bill. This meant that there would have been conflicting interpretations of how and when this restriction applies.
In many cases, federal regulations grant discretion to state agencies to craft state-specific rules. So, in instances where Indiana has been granted this discretion, it would have been difficult if not impossible to determine which rule is “more stringent”.
Here are three environmental examples:
- Narrative Standards: One example is Indiana’s water quality standards – which include both numeric and narrative water quality criteria, and together provide the foundation for the protection of Indiana’s rivers and lakes.
- Designated Uses: Designated uses for waterways – which are the uses that the waterbody should support and are established by IDEM. These designations are Indiana specific, and best decided by Hoosiers and our state officials.
- Storm water Pollution Plans: Storm water pollution prevention plans are also based on narrative criteria and Indiana-specific best practices for controlling storm water pollution.
A Timeline of House Bill 1100
- January 4, 2022: Introduced and assigned to House Committee on Government and Regulatory Reform
- January 12, 2022: Passed out of committee with a 8-2 vote
- January 20, 2022: Referred to House Committee on Ways and Means
- January 24, 2022: Passed out of committee with a 10-5 vote
- January 26, 2022: Passed a floor amendment vote on the House floor
- January 27, 2022: Passed the House with a 61-29 vote
- February 2, 2022: Referred to Senate Committee on Commerce and Technology
- February 9, 2022: We expect a committee hearing on HB 1100 to occur on February 17th (the Committee’s agenda for 2/17)
- February 17. 2022: Briefly heard and amended modestly in the Committee on Commerce and Technology.
- February 24, 2022: A landmark victory for public interest! Chairperson Perfect denied HB 1100 a vote today in Committee, ensuring that it will not move on to the Senate floor. We remain vigilant as the Session draws to a close.
The Right Way Forward
Agency Oversight and Rulemaking Procedures
What impact would HB 1100 have had?
Paralyzed state agency action
Indiana is granted considerable responsibility by the US Environmental Protection Agency to implement air and water quality plans as well as clean-up programs. The language of HB 1100 would have paralyzed IDEM in implementing such plans & programs — for fear that the agency would be sued.
Multiple checks and balances are already built into the Indiana rulemaking process
Indiana’s existing laws already ensure that Indiana does not act irresponsibly in enacting new environmental protection safeguards or other agency standards.
- The Environmental Rules Board is required by law to study carefully whether each provision of a regulation that could be considered more stringent than the federal law specifically to assure the benefit to the State is worth the cost of being more stringent.
- A rule must also be evaluated for its monetary impact on regulated parties, taxpayers and consumers.
- The Indiana Office of Management and Budget must do a fiscal impact assessment for rules with an estimated impact of $500,000 or greater.
- The Indiana Attorney General must ensure a rule is adopted with statutory authority.
More Federal Involvement
The “no more stringent than” requirement ironically shifts more power to the federal government, including U.S. EPA. Inaction by state agencies due to this policy may trigger direct involvement by federal agencies, where before the federal government relied on state agencies’ discretion that is built into federal environmental law. This is an impairment of states’ rights, not an affirmation.
More Intervention by the Courts and Greater Litigation
Given that “more stringent than” is not defined, this will lead to confusion and uncertainty in implementing regulatory requirements, which will result in administrative law judges or the courts playing a bigger role in agency regulation.
In other states that have adopted “no more stringent than” policies, the failure to define such terms has generated significant litigation.
Economic harm, not benefit
HB 1100 would have done little to attract new business, create jobs, or promote economic growth in Indiana but could very well have the opposite effect. Indeed, study after study reveals that states with strong environmental policies have not inhibited their industries’ competitiveness, stifled employment, or hindered economic growth. Rather, the empirical data confirms that states that are more protective of their natural resources consistently out-perform states with weak environmental regulations by all economic measures.
What’s more, economic development officials at the state and local level, including the Indiana Economic Development Corporation, now recognize the essential role that quality of life and quality of place play in attracting and retaining talent, and in business recruitment. Hampering our state agencies’ ability to provide for public health and safety, and protect our environment and natural resources, will diminish our quality of life.
Slower Responsiveness to Citizen Needs
By stripping away the ability of Indiana’s environmental agency (IDEM) to deal with issues where the EPA has acted inadequately, it makes Indiana vulnerable to not serving its citizens in a timely manner, since the legislature is out of session 75% of the year.