General Assembly Overrides ‘No More Stringent Than’ Veto
Through an override of former Governor Mike Pence’s veto, the Indiana Legislature has enacted “no more stringent than” legislation that will limit the ability of the Indiana Environmental Rules Board to enact environmental laws and rules more stringent than existing federal law. The new law is focused on process, not substance. The bill does not bar state environmental standards that exceed federal counterparts, but it delays the rulemaking process and allows the General Assembly time to act before such rules become final.
Federal environmental laws establish minimum standards that states must follow, but nothing prevents states from enacting laws more stringent than federal environmental standards. During the 2016 session, the General Assembly passed House Enrolled Act 1082, known as the “No More Stringent Than” (NMST) bill, which delays the process for promulgating environmental rules that are more stringent than federal law until the General Assembly has a chance to act. However, on March 24, 2016, then-Governor Mike Pence vetoed HEA 1082, citing concerns about public trust and environmental protection. At the time, opponents of the bill cited the need for flexibility and the lead crisis in Flint, Michigan, but supporters saw the bill as a necessary check on any future attempts to expand Indiana’s environmental rules.
Because the HEA 1082 was vetoed after the end of the 2016 session, it was subject to override until the end of the 2017 session. On February 9, 2017, the Indiana House of Representatives voted to override Governor Pence’s veto by a vote of 65-29. On February 14, 2017, the Senate approved the override by a vote of 49 to 1. Thus, the veto was overridden and the bill is now law.
The Indiana Environmental Rules Board (ERB) is responsible for the state’s environmental rules. The ERB is an independent, bipartisan body established by Ind. Code § 13-13-8. Its eleven (11) members are appointed by the Governor. Although many of Indiana’s environmental rules are proposed and even drafted by the Indiana Department of Environmental Management (IDEM), the ERB has the statutory authority to adopt, repeal, rescind and amend Indiana’s environmental rules.
Under the new law, IDEM will be required to submit an annual report to the Indiana Legislature describing any new administrative rule, operating policy or procedure or nonrule policy or statement that has been proposed or put into effect in the previous year. IDEM will be required to identify any proposed rule that imposes a restriction or requirement that is more stringent than a restriction or requirement imposed by federal law. Most importantly, HEA 1082 states that any rule more stringent than its federal counterpart shall not become effective until the adjournment of the regular session of the general assembly that begins after IDEM notifies the Legislature of the proposed rule. The rule contains an exception for emergencies.
Indiana is not the only state dealing with the NMST controversy. In a 2013 study, the Environmental Law Institute reported that twenty-eight (28) states had some version of an NMST law that restricts the authority of state agencies to enact regulations more stringent than federal law. Some have “qualified” NMST laws that merely make it difficult to regulate, but others have strict NMST laws that ensure that the federal regulatory floor is also the state regulatory ceiling. Indiana was considered a “qualified” NMST state because IDEM was required to identify “more stringent than” rules during the rulemaking process. Indiana will still be a “qualified” NMST state, as the new law does not completely prohibit environmental rules that are “more stringent than” federal rules.
A few points are worth noting. The new NMST law will have no effect on existing rules. It is focused upon the rulemaking process, and merely delays the implementation of any future environmental rules more stringent than federal rules in order to give the General Assembly a chance to legislate.
The delays caused by this new law could vary greatly. If a new rule subject to the law is promulgated immediately before the start of a legislative session, the General Assembly would have a very short time to act before the rule becomes final. However, if a rule is adopted and reported during a legislative session, it will not become law until the end of the next session, over a year later.
The new law may lead to some controversies in the future. It is easy to determine whether a state rule is “more stringent than” a federal rule when the rule pertains to a measurable standard. So, for instance, if the federal action level for lead in drinking water is 15 parts per billion (ppb), and the ERB promulgated a 10 ppb state action level, the state rule would clearly be “more stringent than” the federal rule. However, not all environmental rulemaking is quite that simple. For instance, federal coal ash regulations are currently designed to be self-implementing. As such, EPA has no formal role in implementing or enforcing coal ash regulations. Instead, violations are enforced through citizens’ suits. The U.S. Congress is taking steps to amend the law and authorize states to develop their own coal ash enforcement programs, which would end enforcement through citizens’ suits. If the law is changed, and the ERB promulgates a rule establishing a state coal ash enforcement program, would that rule be “more stringent than” the federal rule, since IDEM would have enforcement powers where the EPA has none? The answer is unclear.
Ice Miller’s environmental attorneys can help you navigate the complex array of state and federal environmental laws. If you have any questions, please contact Don Snemis at 317-236-2341 or firstname.lastname@example.org.
About the author: Don Snemis joined Ice Miller LLP after law school in 1988 and was a member of the firm for over 25 years. He then served in the Pence Administration from 2013 through 2016, and was General Counsel and Deputy Chief of Staff at the Indiana Department of Environmental Management from June of 2015 through January of 2017. Don has rejoined Ice Miller, and focuses on environmental law and litigation.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.