A bill that would allow the federal government to set the bar for regulations throughout all state agencies has made its way through the Indiana House of Representatives.
House Bill 1100, authored by Rep. Steve Bartels, passed the House by a 61 to 29 vote. The bill would, among other things, prohibit state agencies from setting any regulation that is “more stringent” than comparable federal statutes or regulations.
That could leave the state of Indiana dependent on the federal government for action on state-specific concerns, like Hoosier health or the environment.
Bartels, the assistant majority whip for the House Republican caucus, called the bill a “proactive approach to government oversight and reform.”
“Agencies do not represent their districts. They don't represent the state. They're an agency that works for somebody. So, when we talk about the checks and balances, we can make more stringent rules and laws, but agencies should not have that power,” Bartels said.
A “no more stringent than” regulation already exists for the Indiana Department of Environmental Management.
Under the 2016 House Enrolled Act 1082, IDEM must notify the Legislature when it intends to enact rules that are “more stringent” than those enacted by the federal government and delay the implementation of the rule until after the end of the next legislative session, giving lawmakers time to kill the rule.
But the 2016 bill gave IDEM leeway to adopt emergency rules, take emergency action or temporarily alter existing policies and procedures or implement new ones.
Under HB 1100, IDEM and every other state agency would not be allowed to develop rules “more stringent” than federal rules under any circumstance. The bill, though, does not define what constitutes “more stringent” or who would make that determination, potentially miring the legislation in lawsuits.
State agencies would be also required to get approval for emergency rules from the state attorney general, who would then be able to deny the emergency rule.
Tim Maloney, senior policy director for the Hoosier Environmental Council, said HB 1100 would negatively impact the ability of Hoosiers to make decisions that affect their own air and water quality.
“[House Bill 1100] would greatly limit our state agency's ability to adopt timely and appropriate state standards to protect public health in the environment,” Maloney said during a hearing of the House Committee on Ways and Means. “Federal environmental laws that are delegated to the states for implementation, like the Clean Air Act and Clean Water Act, build in a great deal of discretion for states in implementing these laws so that state regulators can craft rules that are tailored to Indiana conditions and circumstances.”
Maloney said the state of Indiana already has nearly a dozen checks and balances that restrict the approval of rules and regulations if they are adopted without property authority.
Administrative rules in the Indiana Code specify that rules must “achieve their regulatory goal in the least restrictive manner" and must justify any requirement or cost not justified by state or federal laws or rules. Agencies must also provide a fiscal impact statement for rules estimated to have an impact of $500,000 or greater.
Proposed rules must also be submitted to the attorney general and the governor for review and approval. At that point, the governor has the opportunity to kill the rule.
Additionally, IDEM rules must be approved by the 16-member Environmental Rules Board before they are sent off for review. Half of the board consists of representatives from regulated industries, like agriculture, manufacturing and public utilities.
“The intent here is, if these things are happening more often, we need to change. And if we do need more and more stringent rules, we can change it quicker than the agency,” Bartels said.
"More stringent" legislation would have to run a difficult gauntlet of business interests and lobbyists to be considered by the Indiana lawmakers.
Bartels and other legislators have shown a reluctance to support legislation that does not directly support business interests or partisan cultural issues, leaving the state of Indiana to rely mainly on state agencies for action on health and the environment.
In the 2021 session of the Indiana General Assembly, lawmakers voted down bills standardizing renewable energy siting, establishing radon testing in schools, establishing a blood testing program for veterans or service members potentially exposed to PFAS chemicals and more.
Lawmakers did pass a bill supported by land developers that gutted state protections of wetlands and a bill supported by the oil and gas industry that prevents local governments from banning the use of fossil fuels in their jurisdiction.
They also passed a bill that allowed lawmakers to intervene during public health emergencies declared by the governor, partly to end restrictions that could be seen as restricting businesses, like mask mandates and health orders. The bill could hamper efforts by state agencies to react to emergencies like the COVID-19 pandemic.
Gov. Eric Holcomb filed a lawsuit claiming the bill was constitutional. A Marion County judge sided against Holcomb in October. The Indiana Supreme Court is currently reviewing the lawsuit.