Hotlist 7/13/2011

Welcome back... Well, not really. This has been one of the worst sessions on the environment in some time. As you know, while in recess the Governor vetoed two bills the environmental community had many concerns about, SB 709 and SB 781.

Members,

Welcome back... Well, not really. This has been one of the worst sessions on the environment in some time. As you know, while in recess the Governor vetoed two bills the environmental community had many concerns about, SB 709 and SB 781.

S 781 would have prohibited North Carolina’s right to protect its own air and water. Our unique natural landscape is part of what makes our state a special place to live and do business. Outsiders in Washington D.C. have no business setting limits and telling us what works in our state; that is a move only big polluters will love. Citizens overwhelmingly support keeping protections in place because they know clean air and water better serve our communities, families, and North Carolina’s economy. Section 2 of the bill, eliminating agency final decision making, is just a way to strong arm folks into supporting a bad piece of legislation.

S 709 tried to usurp public debate and rush headlong into new offshore drilling and controversial hydraulic fracturing. It’s pennywise and pound foolish to rush into something like fracking without a thorough debate…just ask the citizens of Pennsylvania and Arkansas who are faced with tainted water coming from their kitchen spigots. Endangering our precious coastal economy and natural beauty in order to theoretically save a few cents at the pump years down the road is pure nonsense. This bill would have guided the state’s energy policy in the wrong direction.

Just to restate the obvious, North Carolina is not the only place recovering from a recession and the environmental protections we have in place are not the reason we are in this state of recovery. Sometimes when I am in a hurry I do not like driving the speed limit, but if I get a speeding ticket, I am not going to ask the mayor to dissolve the police force. This is exactly what is happening here. Environmental protections play an important role in our society -- they keep our communities safe, strong, and economically viable.

As we look around the corner to 2012, the NC League of Conservation Voters will weigh heavily the votes on any overrides of these two bills in making our decisions who to endorse in their campaigns. It is in tough times like these that we must resolve to stand firm on our principles.

Cheers,

Dan

P.S. Below is some information about S781, please contact me if you have any other questions.

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S781: A giant step away from effective, efficient government

S781, Regulatory Reform Act of 2011, developed by industry lobbyists in a six-month back-room process and unveiled only in the last two weeks of the legislative session, dramatically rewrites the process by which state government adopts rules, making it more expensive and less efficient. While the impacts of the bill will reach far beyond the environment (think health care, consumer protection, professional certification, and operations of every branch of government), the bill’s sponsors have presented the bill as an urgent response to an alleged deluge of thousands of environmental rules. A careful review of North Carolina’s environmental rulemaking over the last eight years tells a different story.

• Only a small percentage of North Carolina’s environmental rules have substantial economic impacts. Of the proposed packages of pollution control rules in the last eight years, just 1 in 5 had total anticipated economic impacts (costs + benefits) greater than $3 million.
• Many pollution control rules are necessary to implement federally-delegated programs. For example, over the last eight years, roughly half of air quality and water quality rules were driven directly by the need to match state rules to federal standards and requirements. To be clear, the federal government did not mandate state issuance of these rules; North Carolina could decline to adopt them, and risk that permitting and enforcement be conducted by the federal government from Atlanta or Washington, D.C. No one wants that outcome.
• Many rules are proposed specifically to benefit industry and developers. S781 subjects these to the same red tape as everything else. For example, last year’s overhaul of North Carolina’s waste water pretreatment rules, streamlined several recordkeeping and reporting requirements for industries that discharge into local sewer systems. The rule change was permitted but not mandated by changes in federal law. Under S781, it would have been easier – and a reasonable choice in light of the resources required for rulemaking – for the agency simply to skip it.
• When a regulated interest disagrees with a rule, current law already provides for legislative review. In fact, very few rules are controversial. Since January 2004, only 19 proposals have received letters of objection and legislative review.

Reforming implementation of existing rules requires a different strategy

Some developers and industries have expressed concerns about variations in the way existing requirements are applied by regulators. That is not a problem with rulemaking, but with implementation. The way to improve implementation is not to gut or hopelessly tangle up rulemaking, but to give the regulatory agencies adequate staffing and resources, and let them continue to pay salaries high enough to attract the most competent employees.

Support for Part II (A.L.J. changes) of S781 could result in a worst case scenario

Some legislators have supported S781 in spite of its severe changes to the rulemaking process, because of perceived gains in the final determination of cases before agencies and Administrative Law Judges in Part II of the bill. Per the Governor’s veto announcement, the Attorney General has advised that these changes are unconstitutional. Since the legislation has a severability clause, were the veto to be overridden a possible worst case scenario could occur where the provisions in Part II are vacated, leaving only the detrimental and harmful Parts I and III of the bill as valid law.

S781 would have harmful intended and unintended consequences

An explicit purpose of S781 is to curb the promulgation of unduly burdensome rules. Yet, the bill is such a blunt instrument that it will block even rules that are much needed and entirely appropriate. This flowchart shows exactly how complicated S781 would make rulemaking.

• S781’s requirement that rules be ‘expressly authorized’ is incoherent. Many agency authorities are written in the form, ‘the Commission is authorized to issue rules and take all necessary steps to ensure…’; or, ‘the Board may, in its discretion, issues rules to protect…’. Are these ‘express’ authorities? The new language is ambiguous and will invite litigation, and could effectively repeal large, noncontroversial sections of the General Statutes.
• S781’s requirement that all environmental rules be ‘expressly required’ is actively destructive. Very few agency authorities are written in the form, ‘the Department has the power and duty to…’, or, ‘the Commission shall issue rules that...’. These are requirements. Virtually all other formulations, including those that emphatically leave the decision to regulate to the expertise of an agency, would be eliminated by this provision. In a single stroke of the pen it effectively repeals scores of noncontroversial rules ranging from such topics as hunting seasons and bag limits to core pollution controls.
• Despite the sponsors’ claim that this bill affects only future regulations, S781 will erode existing protections as well. When the Rules Review Commission reviews any final rule, it examines the entire rule, not just the proposed change. If an existing rule could not have been proposed if S781 had been in place previously, that rule must be overturned by the Rules Review Commission whenever an agency attempts to update it. This is a powerful disincentive to update, improve, or even simplify existing rules.
• S781’s review of existing rules dumps a mountain of busywork on top of the Office of State Budget and Management and the regulatory agencies, with little benefit, since the bill already requires proposed rule changes to run a gauntlet of analyses. The proposed annual review process is entirely one-sided: the analysis asks only if rules are ‘unduly burdensome’, never whether they are inadequately stringent, or could spur innovation if improved. S781 adds bureaucracy to state government!

S781 lacks either balance or efficiency

At base, S781 assumes that many proposed rules are bad, but the bill offers no pragmatic way to sort the wheat from the chaff; it just throws obstacles in the path of all rules.

The vision of rulemaking it offers – one in which the legislature will have to identify and mandate any essential rule before an agency can propose it – is ludicrous. No legislature can identify and act on needed rule changes in a timely way across the full range of environmental and public health issues. That’s why our current statutes delegate authority to agency experts to write rules; why rulemaking invites public comment for 60 days, rather than during a one-hour committee meeting; and why current law brings controversial rules to the legislature for review at the end of the process, on a case by case basis.

S781 rides a wave of rhetoric about leaner government, but what the bill offers is bloated rulemaking, wasted effort, and inadequate protections for state residents’ life and property. Please support the Governor’s decision to veto this damaging piece of legislation.

For more information, please contact:

Daniel Conrad
NC Conservation Network
dan@ncconservationnetwork.org

Mary Maclean Asbill
Southern Environmental Law Center
mmasbill@gmail.commmasbill@gmail.com