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Question of the Month ~ March 2017

 

Q. Do any laws in the Midwest restrict state agencies from adopting environmental rules more stringent than federal regulations?

Federal laws and regulations on the environment often serve only as a “floor,” with states having the leeway to enact tougher rules or statutes of their own. However, some state legislatures and governors have adopted measures (either state laws or executive orders) designed to rein in the actions of their own environmental agencies. Most recently, in February, Indiana’s HB 1082 became law. It applies to any Department of Environmental Management rule that is “more stringent than a restriction or requirement imposed under federal law” or “applies in a subject area in which federal law does not impose a restriction or requirement.”
For any new state environmental rule that meets one of these two criteria, Indiana legislative branch must be provided notice. The rule then cannot take effect until adjournment of a regular session of the General Assembly, thus giving lawmakers the chance to stop it via legislation.
HB 1082 was vetoed last year, but lawmakers overrode that gubernatorial action in February. (The General Assembly was able to act this year on the 2016 bill because the veto occurred after legislators had adjourned for the year.)
Indiana’s new statutory language still allows for more-stringent state-level environmental rules. In contrast, state statute in South Dakota is much more restrictive: “No rule that has been promulgated [on environmental protection, mining, oil, gas and water] may be more stringent than any corresponding federal law, rule or regulation.”
In a 2013 national study, the Environmental Law Institute concluded that “South Dakota’s stringency prohibition provision is arguably the most sweeping in the nation.” The focus of the institute’s study was on laws that prohibit state agency rules more stringent than federal regulations under the U.S. Clean Water Act. For example, under Wisconsin statute, the Department of Natural Resources “shall not exceed” federal requirements.
But more common than outright prohibitions, the Environmental Law Institute found, are “qualified restrictions” on the actions of state environmental agencies. This means a state agency can adopt more-stringent rules, but it must first meet specific criteria and/or take some additional steps. For example, Iowa environmental regulators must provide reasons for the more-stringent rules and detail the financial impact. Ohio’s “qualified restriction” requires state agencies to provide the rationale for a more stringent environmental rule, as well as document its environmental benefits and technological feasibility. State regulators in North Dakota must show that “corresponding federal regulations are not adequate to protect public health and the environment of the state.”
In at least two states outside the Midwest, the “no more stringent than” statutory language applies generally to all regulations (not just environmental). Under Kentucky law, “administrative regulations shall be no more stringent than the federal law or regulations,” and the Arizona Governor’s Regulatory Review Council (established by the Legislature) must reject any rule “more stringent than a federal law unless there is [state] statutory authority to exceed the requirements.”
Legislative oversight is another means of controlling the rules set by state agencies. In the Midwest, every state legislature has a process for reviewing proposed and/or existing administrative regulations. This oversight is typically done by a joint, bipartisan legislative committee. In states such as Illinois, Iowa, Michigan, South Dakota and Wisconsin, these committees have the power to suspend agency rules, according to The Council of State Governments’ “Book of the States.”
In Illinois, the Joint Committee on Administrative Rules can block agency rules from ever taking effect.

 

Article written by Tim Anderson, CSG Midwest publications manager. Question of the Month highlights a research inquiry received by CSG Midwest.